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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


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 Page 2 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 denied.


  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 Page 3 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 at 189-90).

  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 Page 4 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 Page 5 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 Page 6 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 Page 7 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 Weisel Aff.).

  Mr. Bonilla then filed his petition for habeas corpus in this Page 8 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 the perpetrator's Page 9 "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. at 275-77.

  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 Page 10 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 Page 11 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 ...

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