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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


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 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 merits.

  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 Page 12 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 Page 13 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 could Page 14 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 rejected.

  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 Page 15 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 Page 16 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. Page 17

  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. Page 18

  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 Page 19 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. Page 20 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., Page 21 ¶ 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 occurred.

  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 First Trial

  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 Page 22 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 Page 23 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 merits.

  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. 10752, Page 24 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 review).

  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 strategy. Id.

  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 Page 25 would have been different. Strickland, 466 U.S. at 687, 694.

  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 Page 26 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 Page 27 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 crime.

  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 Page 28 at 125).

  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 Page 29

  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 Page 30 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" Page 31 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. Page 32 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, Page 33 120 (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 Page 34 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 Page 35 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 claims.

  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 this claim,

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 When he 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. Page 36 (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. Page 37


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