United States District Court, S.D. New York
February 26, 2004.
AMAURY BONILLA, Petitioner, -against- LEONARD PORTUONDO, Superintendent, Shawangunk Correctional Facility, Respondent
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).
B. Legal Proceedings
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 to view
the assailant. Mr. Bonilla's sufficiency of the evidence claim was thus
"fairly presented" to the state courts and may be considered on its
2. The Merits
Mr. Bonilla argues that Mr. Delgado, the only eyewitness called at
trial, did not have an adequate opportunity to view and identify the
petitioner, and therefore his testimony alone was insufficient to
establish his guilt beyond a reasonable doubt. A conviction must be
upheld if, "after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt." Jackson
v. Virginia, 443 U.S. 307, 319 (1979); see also Ouartararo v.
Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999). A federal judge
reviewing a sufficiency claim does not make an independent determination
as to whether the evidence demonstrates the defendant's guilt beyond a
reasonable doubt. Jackson, 443 U.S. at 318-19. Rather, the
judge must construe the evidence in the light most favorable to the
prosecution, deferring to the jury's
resolution of any conflicts in the testimony and its assessment of
the credibility of the witnesses. Id. at 319; United
States v. LeRov, 687 F.2d 610, 616 (2d Cir. 1982); see also
Herrera v. Collins, 506 U.S. 390, 401-02 (1993) (Jackson
inquiry asks only whether decision to convict was rational, not whether
it was correct).
Here, Mr. Bonilla's argument that Mr. Delgado's testimony was
insufficient to establish his guilt beyond a reasonable doubt is without
merit. The testimony of a single, uncorroborated witness is generally
sufficient to support a conviction. See, e.g., United States v.
Danzev, 594 F.2d 905, 916 (2d Cir. 1979); United States v.
Smith, 563 F.2d 1361, 1363 (9th Cir. 1977). In order for eyewitness
testimony to be "unbelievable as a matter of law," it has to be so
incredible that "no reasonable juror could believe [the eyewitness]."
United States v. Rodriguez, 702 F.2d 38, 43 (2d Cir. 1983).
Mr. Bonilla's defense attorney, Michael Torres, conducted an in-depth
cross-examination regarding the witness' ability to make an accurate
identification. (Tr./2 at 207-91, 300-05). In that cross-examination,
defense counsel pointed out several inconsistencies in Mr. Delgado's
testimony, including the fact that the Mr. Delgado had previously
testified that he only observed smoke from a gun instead of actually
seeing a gun. (Tr./2 at 269-73). Counsel also attempted to demonstrate
how difficult it would
have been to view the petitioner from Mr. Delgado's vantage point,
since he was tending to his mortally wounded cousin at virtually the same
time he claimed to have seen the petitioner. (Tr./2 at 234-38, 245-48).
Moreover, defense counsel was able to adequately demonstrate the chaotic
atmosphere in the immediate aftermath of the incident. (Tr./2 at 300-01).
While these considerations may affect the weight of the evidence, they
do not render Mr. Delgado's testimony wholly unbelievable. Mr. Delgado
claimed to have observed the assailant for about seven seconds in a
adequately lit area only moments after the shooting. (Tr./2 at 200-03,
206, 293). As the petitioner walked away from the park, Mr. Delgado
observed his profile for approximately five more seconds. (Tr./2 at
203-05). Additionally, Mr. Delgado claimed that he saw the petitioner
two days later in the park near Sergeant Rodriguez's memorial, and later
that same day, he identified Mr. Bonilla as the perpetrator in a lineup.
(Tr./2 at 193-95). Furthermore, immediately after the incident, Mr.
Delgado described the suspect as Hispanic, twenty-one to twenty-five
years old, and between five feet seven inches to six feet tall. (Tr./2 at
282-84, 292). Mr. Bonilla is Hispanic, was nineteen years old at the time
of his apprehension, and is five feet seven inches tall. (Tr./2 at 165).
Moreover, the fact that Mr. Delgado referred to the suspect as having
olive skin does not affect the sufficiency of the evidence, since jurors
reasonably conclude that Mr. Bonilla has olive colored skin.
(Pictures of Amaury Bonilla, attached as Exh. 2 to Supplemental Affidavit
of David S. Weisel in Opposition to Habeas Petition dated May 1, 2003
("Weisel Supp. Aff.")). Since jurors could reasonably believe Mr.
Delgado's account, even in light of defense counsel's cross-examination,
Mr. Bonilla's challenge to the sufficiency of the evidence should be
B. Marshaling of the Evidence
Mr. Bonilla claims that the trial court improperly marshaled the
identification evidence when, in the jury charge, the judge specifically
referred only to evidence supporting the identification but not to any
evidence that called it into doubt. (Pet. at 4). The respondent argues
that this claim is procedurally barred because an independent and
adequate state ground precludes federal habeas review. Specifically, the
respondent contends that since Mr. Bonilla did not object to the jury
charge at the time of trial, he is now barred from raising in his
petition. (Resp. Memo, at 13).
1. Independent and Adequate State Ground
A federal court may not review a federal question on habeas review if
the state court's "decision rests upon adequate and independent state
grounds." Harris v. Reed, 489 U.S. 255, 261(1989) (citations
and internal quotation marks omitted). "[A] procedural default does not
bar consideration of a federal claim on
habeas review unless the last state court rendering a judgment in
the case `clearly and expressly' states that its judgment rests on a
state procedural bar." Tankleff v. Senkowski, 135 F.3d 235, 247
(2d Cir. 1998) (quoting Coleman v. Thompson, 501 U.S. 722, 735
(1991)); see Harris, 489 U.S. at 263 (in most cases, the state
court must have "clearly and expressly" rejected the claim based on state
law for federal review to be barred); Levine v. Commissioner of
Correctional Services, 44 F.3d 121, 126 (2d Cir. 1995). When
determining whether the last state court issuing a judgment relied on an
independent and adequate state ground, courts should "follow the
presumption established by the Supreme Court and ask not what we think
the state court actually might have intended but whether the state court
plainly stated its intention." Jones v. Stinson, 229 F.3d 112,
118 (2d Cir. 2000). Accordingly, when the "[state appeals court] set[s]
forth the factual predicate for a finding of procedural default, [but]
never actually state [s] that the issue was not preserved," the district
court can appropriately reach the merits of the habeas petition.
Id.; see Santorelli v. Cowhey, 124 F. Supp.2d 853,
856 (S.D.N.Y. 2000).
During the charging conference, the court informed the parties that it
intended to "briefly marshal the contentions of the parties" with respect
to evidence that corroborated or disproved Mr. Delgado's identification.
(Tr./2 at 350). The court noted that it intended to tell the jury that
the identification of the
defendant was corroborated by (1) the defendant's admission that he
was present in the park and heard five shots and (2) the fact that Mr.
Delgado identified the petitioner in a lineup two days after the
incident. (Tr. at 350-51). The court also noted that it would inform the
jury of Mr. Bonilla's contention that he was mistakenly identified. (Tr.
at 351). In response to the court's plan, Mr. Bonilla's attorney
requested "to the extent possible" that "the Court . . . make [the
marshaling] very, very brief and not dwell on it." (Tr. at 352).
When charging the jury, the trial court stated:
[T]he People have offered . . . evidence they
contend serves to establish that the defendant is
the actual perpetrator. (1) The People contend
that the statement by the defendant that he was in
the area at the time of the shooting and heard
shots fired tends to support the identification of
Mr. Delgado. (2) That the testimony of Mr. Delgado
that he saw the defendant in the park two days
after the shooting tends to corroborate the
testimony of Mr. Delgado. And (3) There was a
lineup conducted in which Mr. Delgado identified
the defendant. The People contend that these
circumstances I will not give you all of them
because you heard a lot of arguments. I am not
going over them in detail, I am giving you the
major contentions of the party. There are others,
you consider all of them that you heard.
The defendant contends that Mr. Delgado was
mistaken when he identified the defendant. And
that the defense contends that the description
given by Mr. Delgado was incomplete and
insufficient. Those are the general contentions of
the parties. Not all of them, as I say, there were
other arguments that were advanced to you that you
may rely on or reject or evaluate because you are
the judges. But those are the general contentions.
(Tr./2 at 460-61). The defense attorney did not object to the
charge after the court presented it to the jury.
In his brief to the Appellate Division, the petitioner argued that the
court's marshaling of the evidence in its jury instruction deprived him
of a fair trial. (Def. App. Br. at 16-19). In response, the state argued
that this claim was unpreserved because, at trial, the petitioner's
attorney failed to object to the court's charge on those grounds.
(Respondent's Brief to Appellate Division, attached as Exh. 2 to Weisel
Aff., at 16).
The Appellate Division found that Mr. Bonilla's "complaint about the
court's marshaling of the evidence is inconsistent with his express
request at trial." Bonilla, 251 A.D.2d at 165, 673 N.Y.S.2d at
910. Although this statement "set forth the factual predicate for a
finding of procedural default, it never actually stated that the issue
was not preserved." Jones, 229 F.3d at 118; cf. Velazquez
v. Murray, No. 02 Civ. 2564, 2002 WL 1788022, at *8 (S.D.N.Y. Aug.
2, 2002) (finding that an independent and adequate state court ground
existed where the Appellate Division "explicitly stated that it found
[the petitioner's] claims to be unpreserved").*fn5 Accordingly, the
respondent's argument that Mr. Bonilla's marshaling claim is procedurally
barred is without merit.
2. The Merits
A court's decision to marshal evidence in a jury charge only deprives a
defendant of a fair trial if the charge "so infected the entire trial
that the resulting conviction violates due process." Henderson v.
Kibbe, 431 U.S. 145, 154 (1977); Reese v. Greiner, No. 97
Civ. 5622, 2003 WL 21459577, at *3 (S.D.N.Y. June 23, 2003).
Here, although the identification instruction could have been more
balanced, it did not violate the petitioner's due process rights. When
the challenged portion of the charge is considered "in the context of the
overall charge," the court's instructions were fair. Justice v.
Hoke, 45 F.3d 33, 34 (2d Cir. 1995). The trial judge instructed the
jury that they should make their decision based on the evidence presented
in the courtroom during the trial (Tr./2 at 439), that the court had no
power to tell the jury what the facts of the case were (Tr./2 at 440),
that the jury had the responsibility to evaluate the testimony and
credibility of the witnesses (Tr./2 at 443-49), that the jurors should
draw no inference from the petitioner's decision not to testify (Tr./2 at
451), and that the prosecution had the burden of proving Mr. Bonilla's
guilt as to each element of the charged offense beyond a reasonable
doubt. (Tr./2 at 453-56). Viewed as a whole, the trial court's charge
was proper, and the identification charge did not deprive the petitioner
of a fair trial. See Murden v. Artuz, 253 F. Supp.2d 376, 388
(E.D.N.Y. 2001) (despite marshaling of
identification evidence, jury charge as a whole did not deprive
defendant of fair trial); McEachin v. Ross, 951 F. Supp. 478,
484 (S.D.N.Y. 1997) (marshaling did not deprive defendant of fair trial
since the charge as a whole was proper). Therefore, Mr. Bonilla's claim
for habeas relief on this ground should be denied.
C. Brady Violation
The petitioner next contends that he was denied a fair trial because
the prosecutor failed to turn over the tapes and transcript of a 911 call
which, if fully disclosed, would have led to an investigation of the
caller's statement that the shooter was a "black man." (Amended Petition
for a Writ of Habeas Corpus ("Am. Pet.") at 13). As this witness'
testimony would have contradicted Mr. Delgado's description of the
perpetrator, Mr. Bonilla contends that the prosecution's failure to turn
over the 911 tape or a transcript violated his due process rights as
established in Brady v. Maryland, 373 U.S. 83 (1963). The
respondent does not dispute that the New York State Supreme Court decided
this claim on its merits. (Resp. Memo. at 21).
Under Brady, the state violates a defendant's due process
rights when it suppresses evidence favorable to an accused and the
evidence is "material either to guilt or to punishment." Brady,
373 U.S. at 87. "When the reliability of a given witness may well be
determinative of guilt or innocence, non-disclosure of evidence affecting
credibility falls within this general rule." Giglio v.
United States, 405 U.S. 150, 154 (1974) (internal
quotation marks and citation omitted). Favorable evidence is only
"material" where "there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding
would have been different." United States v. Bagley,
473 U.S. 667, 682 (1985). "A `reasonable probability' of a different result is
accordingly shown when the government's evidentiary suppression
`undermines confidence in the outcome of the trial.'" Kyles v.
Whitley, 514 U.S. 419, 434 (1995) (quoting Bacrley, 473
U.S. at 678).
However, evidence is not considered suppressed if the defendant "either
knew, or should have known, of the essential facts permitting him to take
advantage of [that] evidence." Leka v. Portuondo, 257 F.3d 89,
100 (2d Cir. 2001) (internal quotation marks and citation omitted);
see United States v. Torres, 129 F.3d 710, 717 (2d Cir. 1997);
United States v. Bermudez, 526 F.2d 89, 100 (2d Cir. 1975)
(state's investigative files were not suppressed because defense counsel
could have discovered them with the exercise of due diligence).
The record reflects that although Mr. Bonilla was not provided with a
transcript of the 911 call, he did obtain a copy of the corresponding
Sprint Report*fn6 during his first trial. (440.10 Aff.,
¶ 10). The Sprint Report described the perpetrator as an "MB,"
or "male black." (Weisel Supp. Aff., Exh. 3).
With the Sprint Report in his possession, the petitioner's attorney was
aware that someone had placed a 911 call on May 9, 1993, describing the
assailant as a black male. However, once he found out that a 911 tape
existed, he took no affirmative step to obtain the transcript. Since
defense counsel knew of the essential facts that would have permitted him
to obtain a copy of the 911 tape and transcript, that evidence cannot be
considered withheld, and, consequently, no Brady violation
D. Ineffective Assistance of Counsel
Finally, the petitioner claims that he was deprived of the effective
assistance of counsel because his attorney: (1) failed to call two
witnesses who testified during the petitioner's first trial, (2) failed
to locate three rebuttal witnesses whose testimony would have undercut
the credibility of Mr. Delgado, and (3) failed to locate a witness who
would have provided an alibi for the petitioner.
1. Failure to Call Witnesses Who Testified at Mr. Bonilla's
The petitioner claims that his trial attorney's failure to call Haydee
Ramos and Michelle McGannon as witnesses on the petitioner's behalf
constituted ineffective assistance of counsel. (Am. Pet. at 9-10). Both
Ms. Ramos and Ms. McGannon were called as witnesses at the petitioner's
first trial, which resulted in a
mistrial; however, neither witness was called at the second trial.
The respondent asserts that this claim is barred by an independent and
adequate state ground because the New York Supreme Court found it to be
procedurally barred. (Resp. Memo, at 27). The respondent also contends
that the decision to not call Ms. Ramos and Ms. McGannon was a
"reasonable and informed strategic choice made to benefit petitioner's
case." (Resp. Memo, at 29).
a. Independent and Adequate State Grounds
As discussed above, when a state court judgment rests on independent
and adequate state law grounds, including a petitioner's failure to meet
state procedural requirements, a federal court may not consider the
petitioner's substantive claims. See Coleman, 501 U.S. at
729-30; Jones, 229 F.3d at 117. As the respondent concedes, a
state procedural rule is not "adequate" if it is not "firmly established
and regularly followed." Lee v. Kemna, 534 U.S. 362, 376 (2002)
(quoting James v. Kentucky, 466 U.S. 341, 348 (1984));
Cotto v. Herbert, 331 F.3d 217, 239-40 (2d Cir. 2003).
In denying the petitioner's § 440.10 motion, the New York State
Supreme Court held that "[t]he ineffective assistance of counsel issue
could have been raised at the appellate level and was not." (440.10
Order). The Court cited CPL § 440.10(2)(c), which provides that a
court "must deny" a § 440.10 motion upon a defendant's "unjustifiable
failure to raise [on direct appeal] such
ground or issue," with respect to which "sufficient facts appear on
the record of the proceedings." Applying this procedural rule, the Court
declined to consider the petitioner's ineffective assistance claim on its
However, a review of New York caselaw demonstrates that CPL §
440.10(2)(c) is not regularly followed in the context of ineffectiveness
assistance claims. In People v. Brown, 45 N.Y.2d 852, 853-54,
410 N.Y.S.2d 287, 287 (1978), the New York Court of Appeals stated that,
because "[g]enerally, the ineffectiveness of counsel is not demonstrable
on the main record, . . it would be better, and in some cases
essential, that an appellate attack on the effectiveness of counsel be
bottomed on an evidentiary exploration by collateral or post-conviction
proceeding brought under CPL § 440.10." New York courts have also
held that a claim challenging an attorney's failure to call witnesses
does not sufficiently appear on the record so as to require dismissal of
that claim if raised for the first time on a § 440.10 motion.
See People v. Stewart, 295 A.D.2d 249, 249-50, 745 N.Y.S.2d 151,
152-53 (1st Dep't 2002); People v. Fu Chen, 293 A.D.2d 362,
363, 742 N.Y.S.2d 199, 200 (1st Dep't 2002); People v.
Taborn, 292 A.D.2d 200, 201, 738 N.Y.S.2d 216, 216 (1st Dep't 2002).
Accordingly, it is appropriate to review the merits of the petitioner's
claim concerning his attorney's failure to call Ms. Ramos and Ms.
McGannon as witnesses. See Quinones v. Miller, No. 01 Civ.
2003 WL 21276429, at *13, 21 (S.D.N.Y. June 3, 2003) (procedural
default of claim challenging counsel's failure to call witnesses, among
other deficiencies, was not an adequate state ground precluding habeas
b. The Merits
In order to obtain the reversal of a conviction due to the ineffective
assistance of counsel, the petitioner must demonstrate that: (1)
counsel's performance was deficient, and (2) the deficient performance
was prejudicial to the defense. Strickland v. Washington,
466 U.S. 668, 687 (1984). When reviewing trial counsel's performance, a
habeas corpus court must be "highly deferential" and "indulge a strong
presumption that counsel's conduct falls within the wide range of
reasonable professional assistance." Id. at 689. The court must
not rely upon hindsight to second-guess counsel's unsuccessful trial
With respect to the first prong of the Strickland test, the
petitioner "must show that counsel's representation fell below an
objective standard of reasonableness." Id. The relevant inquiry
is "whether counsel's assistance was reasonable considering all the
circumstances." Id. at 688; see also United States v.
Cronic, 466 U.S. 648, 657-58 (1984). The prejudice prong of the
test requires a "showing that counsel's errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable,"
and that "but for" the claimed errors of counsel, the trial result
would have been different. Strickland, 466 U.S. at 687,
The petitioner asserts that his attorney's failure to call Ms. Ramos
and Ms. McGannon prejudiced his defense at the second trial. He asserts
that these witnesses would have cast doubt on the credibility of Mr.
Delgado because even though Mr. Bonilla was present in the park minutes
after the shooting, Mr. Delgado failed to inform the police of that fact
and have Mr. Bonilla arrested immediately; in fact, in his lineup
identification of the petitioner, Mr. Delgado may have simply mistaken a
person he saw at the crime scene (i.e., the petitioner) for the shooter.
(Am. Pet. at 9). The petitioner also asserts that Ms. Ramos and Ms.
McGannon would have described the excited mental state of the eyewitness
and thereby cast further doubt on his credibility. (Am. Pet. at 9-10).
Finally, the petitioner argues that these witnesses would have testified
to seeing the petitioner approach the park from the opposite direction
from where the shooter fled, "making it impossible for Mr. Bonilla to
have been the perpetrator." (Pet. Reply Br. at 24).
During an evidentiary hearing before this Court, the petitioner's trial
attorney, Mr. Torres, described his reasons for deciding not to call Ms.
Ramos and Ms. McGannon as witnesses. Ms. Ramos also gave testimony that
would likely have been offered at the petitioner's second trial. Mr.
Torres stated that while he found Ms. Ramos and Ms. McGannon to be
"bright and articulate, . . their
testimony [at the first trial] wasn't too helpful, and in some
cases a bit damaging." (H./2 at 69).*fn7 In particular, the
witnesses' suggestion that the police were indiscriminately "rounding up
all the young men in the area" opened the door to questioning on the
circumstances behind the police investigation of the petitioner, and
ultimately forced the defense to accept a stipulation concerning those
circumstances to be read to the jury in lieu of rebuttal testimony. (H./2
at 70-71; Tr./1 621-86). After the first trial ended in a hung jury, the
trial judge permitted the attorneys to question the jurors about their
deliberations. (H./2 at 71). According to Mr. Torres, the jurors
discredited Ms. Ramos' and Ms. McGannon's testimony because these
witnesses had not observed the shooting itself and instead implicated the
petitioner by placing him at the scene of the crime. (H./2 at 71-72). Mr.
Torres also understood that the jurors' doubts about Mr. Delgado's
credibility arose from the conditions under which he made his
identification, not from his possibly being confused between the shooter
and another person he saw in the park. (H./2 at 73). Mr. Torres shared
the jurors' comments with the petitioner and then decided to forego
calling Ms. Ramos and Ms. McGannon as witnesses at the second trial.
(H./2 at 74).
Mr. Torres' testimony establishes that his decision not to
call these witnesses was a reasonable one based on legitimate,
tactical considerations. As Ms. Ramos and Ms. McGannon were not
eyewitnesses to the shooting, Mr. Torres had to balance the helpfulness
of their testimony against the potential that it would reveal other
damaging facts, such as the reasons for the police investigation of the
petitioner. It was also reasonable for Mr. Torres to anticipate that, as
in the first trial, the jurors in the second trial would draw detrimental
inferences from testimony that placed the petitioner at the scene of the
Additionally, the petitioner has failed to show that, "but for" the
witnesses' testimony, the outcome of his trial would have been different.
As discussed above, the testimony of Mr. Delgado provided sufficient
evidence on which to convict the petitioner. Ms. Ramos and Ms. McGannon
were not eyewitnesses and could not have contradicted this testimony.
Moreover, their corroboration of Mr. Delgado's excited mental state was
cumulative of other evidence, such as the facts established during Mr.
Delgado's direct and cross-examination. (Tr./2 at 190-91, 295-96, 298,
300-01). With respect to the direction from which the petitioner
approached the park, Ms. Ramos' testimony in this Court confirmed the
respondent's argument that this discrepancy can be explained by the
ten-minute interval between the shooting and the time the petitioner was
observed in the park. (Respondent's Supplemental Memorandum of Law in
Opposition to Habeas Petition ("Resp. Supp. Memo.") at 8; H./2
2. Failure to Investigate and Locate Rebuttal Witnesses
Mr. Bonilla also argues that his trial counsel was ineffective because
he failed to locate Bronilda Cardona, who had previously stated to the
police that the shooter was a male "dark skinned perp . . . with
a dark blue hooded sweatshirt, pulled over his head."
(Pet. at 5-6). Moreover, the petitioner alleges that his attorney should
have interviewed Carlos Levy and Ralph Bernier, both of whom had
previously described the shooter as a "black male." (Pet. at 6; Pet.
Reply Br. at 21-22). According to the petitioner, since he is a "`white
skinned' hispanic" (Pet. Reply Br. at 22), the witnesses' contrary
descriptions of the perpetrator's skin color would have rebutted the
testimony of Mr. Delgado.
For the same reasons discussed above with respect to Ms. Ramos and Ms.
McGannon, the New York State Supreme Court's ruling that "[t]he
ineffective assistance of counsel issue could have been raised at the
appellate level and was not" (440.10 Order), is not an independent and
adequate state ground barring this Court's review of the petitioner's
claims concerning Ms. Cardona, Mr. Levy, and Mr. Bernier.*fn8
Of the three rebuttal witnesses whom the petitioner asserts should have
been located and called by his attorney, only Mr. Levy testified at the
evidentiary hearing before this Court. In his testimony, Mr. Levy stated
that on the day of the shooting, he was listening to music in his
apartment when he heard gunshots; he then went to the window and saw
someone walking underneath the window. (H./2 at 91). Mr. Levy testified
that he did not know whether the person he saw was the shooter (H./2 at
91), or what the race of the person was. (H./2 at 94). When asked whether
he recalled describing the person as "black" to the 911 operator, Mr.
Levy stated, "I didn't see him . . . I don't see how [indiscernible]
how I [indiscernible] to say he was black or white or Hispanic." (H./2 at
95). Mr. Levy also stated, "I don't see a skin. I don't see nothing."
(H./2 at 97).
Mr. Bonilla was unable to locate Ms. Cardona for purposes of supporting
his habeas petition (Letter of Thomas F.X. Dunn dated January 30, 2004),
and according to Mr. Levy's testimony, Mr. Bernier previously lived in
the apartment beneath him but is now deceased. (H./2 at 98). A police
complaint dated May 9, 1993, attached to the respondent's papers,
references Ms. Cardona's statement to the police that she was sitting on
a park bench at the
site of the shooting when she observed a "dark skinned" perpetrator
shoot the victim. (Weisel Aff., Exh. 14).
In an affidavit submitted as part of the petitioner's CPL § 440.10
motion, Mr. Bernier stated that on the day of the shooting, the victim
called his wife from the sidewalk to wish her a happy Mother's Day.
(Affidavit of Ralph Bernier dated June 3, 1999 ("Bernier Aff."), attached
as Exh. 11 to Weisel Aff.). Shortly thereafter, Mr. Bernier heard
gunshots, and when he looked out the window, he saw a "male, dark skinned
about 20's [sic] years old, skinny build r[u]n right past my window."
(Bernier Aff. at 1).
The male "looked up" at Mr. Bernier, then continued running. Mr.
Bernier stated, "I know for a fact that the male that ran past my window
was not Amaury Bonilla." (Bernier Aff. at 2). He also stated that he had
known both the victim and Mr. Bonilla since they were children.
The evidence cited above fails to support the petitioner's contention
that the testimony of Ms. Cardona, Mr. Levy, and Mr. Bernier would have
rebutted the eyewitness' description of the perpetrator's skin color. Ms.
Cardona's purported observation of a "dark skinned" perpetrator did not
ultimately contradict Mr. Delgado's description of the shooter as having
an "olive complexion." (Pet. Reply Memo. at 6). Given the petitioner's
skin complexion, (Weisel Supp. Aff., Exh. 2), and the fact that the
shooting occurred at night, a description of a "dark skinned"
perpetrator would not have ruled out the petitioner as the shooter.
With respect to Mr. Levy and Mr. Bernier, these witnesses did not
observe the shooting itself and only described a person who ran past
their window after the shooting occurred. While Mr. Bernier stated
emphatically in his affidavit that the person he observed was not the
petitioner, this statement did not establish that the person was
therefore the shooter. Consequently, for the jury to reach a different
outcome, it would have had to draw the inference that the person running
past Mr. Bernier's window was in fact the shooter, then credit his
identification testimony over that of the eyewitness to the shooting.
Given the totality of the evidence, including the strength of the
eyewitness identification, the petitioner cannot show a "reasonable
probability" that an acquittal would have resulted. Strickland,
466 U.S. at 695.
Finally, Mr. Levy's testimony is too equivocal to support any
inference that he observed a person with a skin color different from that
identified by the eyewitness.
3. Failure to Investigate and Locate Alibi Witness
Finally, Mr. Bonilla argues that his trial counsel was ineffective
because he failed to interview Patrick McGannon, a witness who would have
led him to an Alex Ramirez; Mr. Ramirez in turn, according to the
petitioner, would have testified that he was with the petitioner when the
shooting took place and that the petitioner was walking his dog in the
park at that time. (Am. Pet.
at 11). Thus, the petitioner argues that his attorney's failure to
investigate the matter fully prevented him from presenting an alibi
witness. (Am. Pet. at 11). The respondent contends that the
McGannon-Ramirez claim is unexhausted because it was never presented to
the state courts for consideration. (Resp. Supp. Memo. at 4-5).
a. Exhaustion and Procedural Default
As discussed above, before a federal court may review a habeas claim on
the merits, the petitioner must first allow the state courts a fair
opportunity to consider the federal claim. 28 U.S.C. § 2254(b), (c);
see also Picard, 404 U.S. at 275; Dave, 696 F.2d at 190. While
additional factual allegations that do not "fundamentally alter the legal
claim already considered by the state courts" do not require the
presentation of those facts to the state court prior to federal habeas
review, Vasquez, 474 U.S. at 260, the "factual basis of [an]
ineffective assistance of counsel [claim] must have been presented to the
state courts in order to satisfy the exhaustion requirement of
28 U.S.C. § 2254(b)." Ireland v. State of New York, No. 91 Civ. 5641,
1994 WL 649157, at *3 (Nov. 16, 1994) (citations omitted); see
Twitty v. Smith, 614 F.2d 325, 332 (2d Cir. 1979).
In spite of these requirements, a federal court may deem a claim to be
exhausted if it is clear that the state court would find the claim
procedurally barred. Grey v. Hoke, 933 F.2d 117,
120 (2d Cir. 1991) (citing Harris, 489 U.S. at 263 n.9).
In the case of a procedural bar, the federal court may not reach the
merits of that claim "unless the prisoner can demonstrate cause for the
default and actual prejudice as a result of the alleged violation of
federal law, or demonstrate that failure to consider the claims will
result in a fundamental miscarriage of justice." Coleman, 501
U.S. at 750; Levine, 44 F.3d at 126.
The petitioner asserted in his § 440.10 motion that he was denied
the effective assistance of counsel; however, that claim did not include
his current allegations regarding Mr. McGannon and Mr. Ramirez. The
petitioner alleged in that motion that his attorney "failed to
investigate matters," stating that had his attorney conducted a proper
investigation, he would have located Ms. Cardona, Mr. Bernier, and Mr.
Levy. (440.10 Aff., ¶¶ 18-21). However, since his ineffective
assistance claim did not include any allegations about the failure to
locate Mr. McGannon or Mr. Ramirez, the "factual basis" of the
McGannon-Ramirez claim was not presented to the state court; this claim
is therefore unexhausted.
However, this Court cannot deem this claim to be exhausted because Mr.
Bonilla is not procedurally barred from returning to state court to file
a second § 440.10 motion which incorporates the new allegations.
While CPL § 440.10(3)(c) provides that a state court "may deny" a
motion to vacate where "[u]pon a previous motion. the defendant was in a
position adequately to raise the
ground or issue underlying the present motion but did not do so,"
such denials are discretionary and do not impose an absolute bar on
successive motions. See Gibbs v. State of New York, No. 01 Civ.
5046, 2002 WL 31812682, at *2-3 (S.D.N.Y. Dec. 12, 2002) (failure to
exhaust ineffective assistance claim does not create procedural bar in
light of CPL § 440.10(3)(c)); Marchese v. Senkowski, No. 97
Civ. 2055, 1999 WL 731011, at *6 n.4 (E.D.N.Y. Sept. 15, 1999) (same).
Moreover, since an attorney's failure to locate and investigate witnesses
does not adequately appear on the record of the criminal proceedings, the
petitioner will not be precluded under CPL § 440.10(2)(c) from
bringing a motion to vacate based on his failure to raise the claim on
direct appeal. See Rowe v. State of New York, No. 99 Civ.
12281, 2001 WL 1606744, at *4-5 (S.D.N.Y. Dec. 12, 2001);
Quinones, 2003 WL 21276429, at *21.
Notwithstanding the absence of a procedural default, it is appropriate
in this case to consider the petitioner's unexhausted claims on their
merits. Previously, a petitioner in a habeas corpus proceeding was
required to exhaust all available state court remedies for each claim
prior to federal review. Rose v. Lundy, 455 U.S. 509, 522
(1982). However, with the enactment of the Anti-Terrorism and Effective
Death Penalty Act (the "AEDPA"), Pub.L. 104-132, 110 Stat. 1214 (April
24, 1996), the habeas corpus statute has been amended to provide that
"[a]n application for a writ of habeas corpus may be denied on the
merits, notwithstanding the
failure of the applicant to exhaust the remedies available in the
courts of the State." 28 U.S.C. § 2254 (b)(2). Thus, if the federal
court finds that all the claims lack merit, it has discretion to dismiss
the petition on its merits even though it may contain some unexhausted
As discussed below, the petitioner's ineffective assistance claim
concerning Mr. McGannon and Mr. Ramirez lacks merit. Accordingly, Mr.
Bonilla's habeas petition should be denied despite his failure to exhaust
b. The Merits
Both Mr. McGannon and Mr. Ramirez appeared to testify at the
evidentiary hearing before this Court. Mr. McGannon testified that on the
day of the shooting, he arrived home and saw his mother and sister at the
edge of the park where the shooting occurred. (H./1 at 6).*fn9
joined them, he saw one man hovering over another near the middle of the
park. (H./1 at 8). Shortly thereafter, Mr. McGannon observed the
petitioner walking toward the park from a direction that was "opposite
the actual incident" and next to Mr. McGannon's house. (H./1 at 10). He
observed the petitioner with two other individuals. (H./1 at 10-11).
Mr. Ramirez testified that he and his brother were working on a car
when he observed a crowd of people running toward the park.
(H./1 at 24). He did not hear gunshots because he was working on
the stereo system inside his car. (H./1 at 25). When Mr. Ramirez began to
cross the street towards the park, he saw the petitioner walking towards
the park from the same direction. (H./1 at 25). He and the petitioner
reached the corner of the park at the same time. (H./1 at 25).
Subsequently, Mr. Ramirez's stepfather was arrested because "he fit the
description" of the shooter; he was released two and a half hours later.
(H./1 at 28-29). Mr. Ramirez described his stepfather as having "dark"
skin. (H./1 at 30).
This evidence fails to show that the testimony of Mr. McGannon and Mr.
Ramirez would have changed the outcome of the petitioner's trial.
Contrary to the petitioner's contention, Mr. Ramirez's testimony does not
provide an alibi for him during the shooting. Instead, Mr. Ramirez, along
with Mr. McGannon, only reiterate the statements of Mr. McGannon's mother
and sister (Haydee Ramos and Michelle McGannon), presented at the
petitioner's first trial, to the effect that Mr. Bonilla was present at
the park after the shooting occurred. As discussed above, none of these
individuals was an eyewitness to the shooting, and they would not have
significantly bolstered the petitioner's defense.
Thus, the petitioner's trial counsel did not provide ineffective
assistance of counsel by failing to investigate the witnesses identified
by the petitioner or call them to testify.