The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge
REPORT AND RECOMMENDATION
Amaury Bonilla petitions for a writ of habeas corpus pursuant to
28 U.S.C. § 2254, challenging his conviction for second degree murder
following a jury trial in New York State Supreme Court, Bronx County. He
contends that: (1) the evidence from a single eyewitness was insufficient
to establish his guilt beyond a reasonable doubt; (2) the trial court
improperly marshaled the identification evidence when, in its jury
charge, it specifically referred only to evidence supporting the
identification; (3) the prosecution's failure to turn over the tapes and
transcripts of a 911 call constituted a Brady violation; and
(4) he was denied the effective assistance of counsel because his trial
attorney (a) failed to call two witnesses who testified during the
petitioner's first trial, (b) failed to locate three rebuttal witnesses
whose testimony would have undermined the credibility of the single
eyewitness, and (c) failed to locate a witness who would have
provided an alibi for the petitioner. This Court held evidentiary
hearings with respect to this petition on October 28 and December 3,
2003. For the reasons that follow, I recommend that the petition be
A. The Murder of Sergeant Richard Rodriguez
On the night of May 9, 1993, Richard Rodriguez, a Staff Sergeant in the
United States Marines Corps, and his cousin, Marcello Isaac Delgado, sat
in a park on Crotona Avenue in the Bronx where they spoke and drank a few
beers. (Tr./2 at 181, 183-85, 214-16, 219-21).*fn1 Suddenly, Mr.
Delgado heard a loud bang, followed by three more successive "loud
sounds." (Tr./2 at 185-86, 198-99, 227). All four sounds came from behind
them. (Tr./2 at 227). Mr. Delgado thought that the initial noise was a
firecracker and neither he nor Sergeant Rodriguez reacted to it. (Tr./2
at 185, 198-99). However, after the three additional "loud sounds,"
Sergeant Rodriguez screamed and grabbed Mr. Delgado, at which point Mr.
Delgado lost his balance and fell to one knee. (Tr./2 at 186, 199-200,
205, 227-28, 232-33). Mr. Delgado quickly realized that Sergeant
Rodriguez had been shot several times in the back.
At this point, Mr. Delgado looked behind him and saw a man standing in
the middle of the street. (Tr./2 at 186-87). He had
a clear view of this man for approximately seven seconds. (Tr./2 at
248). He observed a "smokey mist" emanating from the man's side. (Tr./2
at 187, 268-75). He also noticed that the man was wearing dark red jeans
and a hooded sweatshirt. (Tr./2 at 187). As he watched the man he
believed to be the shooter walk away for approximately five seconds, Mr.
Delgado observed the man's profile. (Tr./2 at 203-05, 249-51). As the
shooter began to retreat, Mr. Delgado threw a beer bottle at him. (Tr./2
Shortly after the shooting, Police Officer Edward Brandon and Officer
Otero*fn2 arrived at the park after receiving a radio run informing them
that a man had been shot. (Tr./2 at 47-51). Upon their arrival, the
officers saw Mr. Delgado standing over Sergeant Rodriguez's blood-soaked
body. (Tr./2 at 50-51). Mr. Delgado provided Officer Delgado with a
description of the suspect, noting that he was a Hispanic man with an
olive complexion between 21 and 25 years old and approximately five feet
seven inches to six feet tall. (Tr./2 at 282-84, 292). After speaking
with Mr. Delgado, Officer Brandon secured the area and called for a
detective squad and an ambulance. (Tr./2 at 52).
Two days later, on May 11, 1993, Mr. Delgado went back to the park to
view a memorial created for his cousin. (Tr./2 at 194-95). On his way to
the memorial, Mr. Delgado observed the man whom he
believed had killed Sergeant Rodriguez walking a dog in the park.
(Tr./2 at 193-95, 274-76). He observed this man for approximately five
seconds and then, afraid for his own life, hid in a nearby church. (Tr./2
at 276-77). He did not tell anyone that he had seen the perpetrator.
Later that day, Detectives John Wynne, James Finnegan, and John Tierney
apprehended Mr. Bonilla and brought him to the 48th Police Precinct.
(Tr./2 at 81-86). Shortly thereafter, the police placed Mr. Bonilla in a
lineup, and Mr. Delgado identified him as Sergeant Rodriguez's killer.
(Tr./2 at 192-94).
Mr. Bonilla was originally tried for Sergeant Rodriguez's murder in
March and April 1996. At this trial, the defense called two witnesses.
The first, Haydee Ramos, who at the time of the incident resided across
the street from the park where the shooting occurred, testified that she
heard several shots, then proceeded to call 911. (Tr./1 at 503,
508-10).*fn3 After placing the 911 call, Ms. Ramos and her daughter
Michelle McGannon went to the park, and she noticed her daughter and the
petitioner having a conversation. (Tr./1 at 510-12).
The defense also called Ms. McGannon at the first trial. Ms. McGannon
testified that after she and her mother had been in the
park for approximately ten minutes, she saw Mr. Bonilla walking
down Crotona Avenue towards the park. (Tr./1 at 547, 568-70). She noted
that she and the petitioner had a conversation at one corner of the park,
and that after their conversation, the petitioner walked into the park.
(Tr./1 at 550-51). Ms. McGannon remained at the corner of the park for
another ten to fifteen minutes. (Tr./1 at 551). She testified that as she
left the area, the petitioner remained inside the park. (Tr./1 at 551).
After deliberating, the jury was unable to reach a verdict, and the judge
declared a mistrial. (Tr./1 at 907-08).
At the second trial, Mr. Bonilla did not call any witnesses on his
behalf. The prosecution offered several witnesses, including Mr. Delgado,
who was the state's only identification witness. On July 25, 1996, Mr.
Bonilla was found guilty of second degree murder. (Tr./2 at 495-96). The
court sentenced him to a term of twenty-five years to life imprisonment.
(S. at 16).*fn4
The petitioner appealed his conviction to the Appellate Division, First
Department, alleging that: (1) his due process rights were violated
because the evidence of a single eyewitness was insufficient to establish
his guilt beyond a reasonable doubt, and (2) he was denied due process
and a fair trial because of the court's marshaling of the evidence in the
identification section of
the jury charge. (Brief for Defendant-Appellant to Appellate
Division ("Def. App. Br."), attached as Exh. 1 to Affidavit of David S.
Weisel in Opposition to Habeas Petition dated January 29, 2002 ("Weisel
Aff."), at 12-19). The Appellate Division affirmed the petitioner's
conviction. People v. Bonilla, 251 A.D.2d 165, 166,
673 N.Y.S.2d 910, 910 (1st Dep't 1998). The Appellate Division found that
the "verdict was based on legally sufficient evidence and was not against
the weight of the evidence. Issues concerning reliability of
identification testimony were properly presented to the jury."
Id. at 165, 673 N.Y.S.2d at 910. Moreover, the court concluded
that Mr. Bonilla's "complaint about the court's marshaling of the
evidence [was] inconsistent with his express request at trial . . . [and]
was not prejudicial." Id., 673 N.Y.S.2d at 910. Mr.
Bonilla's application for leave to appeal to the Court of Appeals, in
which he requested the court to review all the issues raised in his
appellate papers, was denied on September 24, 1998. People v.
Bonilla, 92 N.Y.2d 922, 680 N.Y.S.2d 464 (1998) (table).
On August 20, 1999, the petitioner filed a motion pursuant to New York
Criminal Procedure Law ("CPL") § 440.10 in which he sought to vacate
his conviction. He argued that: (1) he was denied the right to a fair
trial based on the prosecutor's withholding of favorable evidence,
specifically a 911 tape, (2) an affidavit of a neighborhood resident
attesting to seeing a "dark skinned" male
running past his window shortly after the shooting constituted
"newly discovered evidence," and (3) he was denied the effective
assistance of counsel when his trial attorney (a) failed to call the two
defense witnesses who testified during the petitioner's first trial, and
(b) failed to locate three rebuttal witnesses whose testimony would have
undermined the credibility of the single eyewitness. (Affidavit of Amaury
Bonilla in Support of Motion to Vacate Judgment Pursuant to CPL §
440.10 dated Aug. 20, 1999 ("440.10 Aff.") and Memorandum of Law in
Support of Motion, both attached as Exh. 4 to Weisel Aff.). The State
Supreme Court denied the defendant's CPL § 440.10 motion, noting that
the "ineffective assistance of counsel issue could have been raised at
the appellate level and was not," that the "existence of a 911 tape was a
matter of record at the time of trial . . . and therefore is not new
evidence," and that "[t]he affidavit of a neighborhood resident six and a
half years after the fact, to the effect that a dark-skinned person other
than defendant was seen running near the park at about the time of the
shooting does not rise to the level of new evidence." (Order Denying
Petitioner's § 440.10 Motion dated November 16, 1999 ("440.10
Order"), attached as Exh. 7 to Weisel Aff.). The Appellate Division
denied the petitioner's application for leave to appeal this decision.
(Certificate Denying Leave dated February 2, 2000, attached as Exh. 10 to
Mr. Bonilla then filed his petition for habeas corpus in this
Court on March 29, 2000. On April 17, 2002, I appointed counsel for
Mr. Bonilla and directed counsel to address the petitioner's
Brady and ineffective assistance of counsel claims.
A. Sufficiency of the Evidence
Mr. Bonilla claims that the testimony of a single eyewitness was
insufficient to establish his guilt beyond a reasonable doubt.
Specifically, the petitioner contends that Mr. Delgado's testimony
standing alone, without any other evidence connecting him to Sergeant
Rodriguez's death, was insufficient to support his conviction. (Reply
Brief of Petitioner ("Pet. Reply Br.") at 5). In support of this claim,
the petitioner argues that Mr. Delgado did not have an adequate
opportunity to view the assailant and that Mr. Delgado's testimony was
incredible because it was inconsistent with his prior statements. (Pet.
Reply Br. at 5-6).
The respondent contends that this claim is partially unexhausted
because, while the petitioner did raise his sufficiency of the evidence
claim in state appellate proceedings, he did not contend, as he does now,
that Mr. Delgado's characterization of the perpetrator's complexion as
"olive" was a fact that contributed to the overall unreliability of the
identification. (Respondent's Memorandum of Law in Opposition to Habeas
Petition ("Resp. Memo.") at 6). Therefore, the respondent argues that
this Court should not address any statements Mr. Delgado made regarding
"olive complexion" in its sufficiency of the evidence analysis.
(Resp. Memo. at 6-7).
1. Exhaustion and Procedural Default
Before a state prisoner may receive federal habeas corpus relief, he
must first allow the state courts a fair opportunity to consider the
federal claim. 28 U.S.C. § 2254 (b), (c); see also Picard v.
Connor, 404 U.S. 270, 275 (1971); Daye v. Attorney General of
New York, 696 F.2d 186, 190 (2d Cir. 1982). Since
"non-constitutional claims are not cognizable in federal habeas corpus
proceedings . . ., a habeas petition must put state courts on notice
that they are to decide federal constitutional claims." Petrucelli
v. Coombe, 735 F.2d 684, 687 (2d Cir. 1984) (citation omitted). A
claim has been "fairly presented" to the state court when the court has
been apprised of both the factual and legal premises of the claim upon
which the petitioner now seeks federal relief. Picard, 404 U.S.
As long as a habeas corpus petitioner presents factual allegations that
do not "fundamentally alter the legal claim already considered by the
state courts" he has satisfied exhaustion requirements. Vascruez v.
Hillery, 474 U.S. 254, 260 (1986); see Caballero v. Keane,
42 F.3d 738, 741 (2d Cir. 1994) (when facts not presented at the state
level "cast [the] claim in a significantly different light," those newly
presented facts must be presented to the state court in order for the
habeas claim to be
considered exhausted); Harvey v. Portuondo, No. 98 Civ.
7371, 2002 WL 2003210, at *5 (E.D.N.Y. Aug. 5, 2002) ("[e]ven if a
petitioner raises precisely the same legal claim in state and federal
proceedings, reliance in the two proceedings upon different factual
grounds that fundamentally alter the legal claim already considered by
the state courts will foreclose a conclusion that the claim is
exhausted") (internal quotation marks and citation omitted).
In his brief to the Appellate Division, the petitioner asserted that
Mr. Delgado's identification violated his due process rights under the
Fourteenth Amendment because the identification was inherently
unreliable. (Def. App. Br. at 12). The petitioner's appellate argument
centered on whether Mr. Delgado had an adequate opportunity, given the
chaotic circumstances, to view the assailant. (Def. App. Br. at 14-15).
Specifically, he contested the reliability of the identification on the
ground that Mr. Delgado "had only a few seconds to view the assailant, at
night, while holding his dying cousin in his arms." (Def. App. Br. at
12). Other factors which Mr. Bonilla claimed contributed to the
unreliable identification included the high level of stress associated
with the situation and the positioning of Mr. Delgado when tending to his
fallen cousin. (Def. App. Br. at 12-15).
In his habeas petition, Mr. Bonilla asserts one additional fact in
support of his sufficiency of the evidence argument, namely Mr. Delgado's
reference during trial to the assailant's olive
complexion. (Petition for a Writ of Habeas Corpus ("Pet.") at 3-4;
Pet. Reply Br. at 6). Certainly, this additional fact does not cast the
petitioner's sufficiency claim in an entirely different light. It is
merely one additional factor to be considered in the total reliability
analysis and is a by-product of the petitioner's more general claim,
namely, that the Mr. Delgado did not have an adequate opportunity ...