United States District Court, S.D. New York
August 10, 2004.
LIONEL LEDESMA, Petitioner,
RAYMOND J. CUNNINGHAM, Superintendent, Woodbourne Correctional Facility, Respondent.
The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
REPORT AND RECOMMENDATION
Lionel Ledesma (who is referred to in the state court record as
"Liobel" or "Leobel" Ledesma) brings this petition for writ of
habeas corpus pro se pursuant to 28 U.S.C. § 2254. Following
a jury trial in the New York State Supreme Court, Bronx County,
Ledesma was convicted of Assault in the First Degree, Assault in
the Second Degree, and Attempted Manslaughter in the First
Degree. He was sentenced to a total term of imprisonment of 11 to
22 years. Ledesma is currently incarcerated pursuant to that
judgment at the Woodbourne Correctional Facility in Woodbourne,
New York. For the reasons stated below, Ledesma's petition should
A. Evidence Presented at Trial
1. The People's Case
Antonio Castro testified that prior to June 10, 1996, he had
worked for four years fixing cars in a body shop named "Ecuador,"
which was owned by his common-law wife, Myra Perez. (Castro: Tr.
282-84). During the summer of 1995, a man named Jose came to see
Castro to ask him to look at a 1994 red Supra. (Castro: Tr. 286-87). Castro
looked at the car and told Jose that it would cost $4500 to
repair. (Castro: Tr. 287). Castro repaired the car using various
parts provided by Jose and Jose paid him the $4500. (Castro: Tr.
287-88, 291-94). Twice while Castro was repairing the car, Jose
came by the body shop accompanied by a person he introduced as
"Diego Ledesma." (Castro: Tr. 289-90).
Detective Owen McShane testified that on September 20, 1995, he
seized a red 1994 Toyota Supra from a garage because the vehicle
identification number ("VIN") visible through the windshield
referred to as "the public VIN number" did not match the VIN
imprinted on the bottom of the car by the manufacturer. (McShane:
Tr. 469-75, 505-07). The public VIN number belonged to a 1994
Toyota Supra that had been wrecked and sold by an insurance
company in Michigan to Alpine Motors in the Bronx. (McShane: Tr.
476-78). The VIN imprinted on the bottom of the car belonged to a
1994 Toyota Supra that had been reported stolen in Nassau County
on March 28, 1995. (McShane: Tr. 475-76). The next day, Ledesma
came to Detective McShane's office and produced paperwork
indicating that he was the owner of the wrecked Michigan car sold
to Alpine Motors. (McShane: Tr. 478-82, 491-94, 508-09, 516-18,
532). Ledesma was told that he was not going to get the car back
because it was a stolen car and had to be returned to its owner.
(McShane: Tr. 483-84). McShane testified that based on the
paperwork Ledesma provided and the fact that he came to inquire
about the car of his own free will, he had no reason to believe
that Ledesma had stolen the car. (McShane: Tr. 484-85, 521-22).
Detective McShane later learned that the public VIN number
corresponding to the Michigan wrecked car had been titled and
registered by Jose Quezada at a "mail drop" in Pennsylvania along with approximately 400 other vehicles, many of
which were stolen. (McShane: Tr. 488-91, 494-95, 527-30).
Detective McShane explained that before a car can be registered
in New York, it must be inspected to confirm that the VINs match
but that in Pennsylvania no such inspection takes place.
(McShane: Tr. 496-98). He further explained that, after having
obtained a Pennsylvania title with a false public VIN number (the
one on the dashboard), an individual could (1) have the car
insured, report it stolen, and collect insurance money; (2) make
a counterfeit VIN plate, put it on another vehicle, register it,
and then either drive the vehicle or ship it out of the country;
or (3) turn the car without a VIN into a junk yard in order to
collect money for the parts. (McShane: Tr. 499-500). He opined
that based on what he knew there was a "strong possibility" that
Quezada was the person involved in such criminal activity.
(McShane: Tr. 500-02).
In December 1995, Ledesma came to Castro's garage, told him
that the police had taken his car, and asked Castro what kind of
work he had done on it. (Castro: Tr. 294-95). Ledesma later
returned to Castro's garage with his father; the men were angry
that they were going to lose their money and wanted Castro to do
something about it. (Castro: 295-97, 299-300). Castro told them
to talk to Jose. (Castro: Tr. 299). Castro testified that he was
not aware that anyone had done anything improper with the car.
(Castro: Tr. 341-42).
On February 16, 1996, Castro was shoveling snow with two other
people outside the shop when Ledesma arrived with another person
Castro did not recognize. (Castro: Tr. 300-02, 353-55). Ledesma
said to Castro, "Hey, I want the money for my Supra." (Castro:
Tr. 300-01). During the conversation that ensued, Ledesma became
furious and grabbed Castro's shovel, which Castro had put down,
and hit Castro on his head and hand (Castro: Tr. 302-03). Castro fell to the ground and Ledesma continued hitting him with the
shovel. (Castro: Tr. 303). Ledesma said that he was going to kill
Castro as he was hitting him. (Castro: Tr. 304). Castro testified
that he lost consciousness and had two broken fingers as a
result. (Castro: Tr. 303). The police came and took Castro to the
hospital, where he was given a cast and treated for a cut on his
head. (Castro: Tr. 305-06). Although the police came to his house
following the incident, Castro was no longer living there and did
not make any effort to seek out the police. (Castro: Tr. 306-07).
On June 10, 1996, Castro arrived for work at the body shop and
went to the back of the shop to use the phone. (Castro: Tr.
308-11). He felt something behind him and when he looked up,
Ledesma was there and said, "I am going to lose the money from my
Supra." (Castro: Tr. 311). Then Ledesma removed a machete from
his waist and started swinging it at Castro. (Castro: Tr.
311-14). Ledesma continued to swing the machete at Castro
"[m]any, many, many times," cutting him 25 times, including on
his face, his fingers, and his arm. (Castro: Tr. 311-24). At
first, Castro tried to protect himself with his arms but "the
first blow . . . came with such impact that it cut my arm so
badly that it cut the bone off and my arm was hanging on by a
little piece." (Castro: Tr. 315). Throughout this attack Ledesma
was saying, "I'm going to kill you." (Castro: Tr. 313, 315-16,
Luis Tenecella, an employee at the body shop, witnessed this
incident. (Tenecella: Tr. 395-99). He was in the back of the shop
washing his hands when he saw three men enter the shop and
approach Castro, who was holding the telephone. (Tenecella:
397-98, 405-07). One of the men asked Castro, "What happened to
my Supra? Am I going to lose my money?" (Tenecella: Tr. 398).
When Castro responded that he did not know, the man pulled a
machete from his pants and swung it at Castro, hitting him in the neck
"with all his strength, with a lot of vengeance." (Tenecella: Tr.
398-99). At the moment he was attacked, Castro had nothing in his
hands other than the telephone; nor did he pick up anything or
try to hit the man with a pipe. (Tenecella: Tr. 404-06). The man
struck Castro 20 or 30 more times. (Tenecella: Tr. 404). The two
other men who came in with the man were standing with their right
hands inside their belts as if they had weapons as well.
(Tenecella: Tr. 399-401, 409). Tenecella and another employee
went past the men to get outside to call for help. (Tenecella:
401-02, 409-14). The two men followed them outside and got into a
car that was parked in front of the shop. (Tenecella: Tr. 402).
Reynaldo Moloon, who was outside in the street fixing his car,
heard a man running and yelling, "Esperame, esperame," meaning
"wait for me." (Moloon: Tr. 424-27). The man running was carrying
a machete in his right hand that was about two feet long.
(Moloon: Tr. 427-29, 436-37). The man got into a red Pontiac
Grand Am, in which two other people were waiting, and then the
car drove off. (Moloon: Tr. 429-30).
After the incident, Castro crawled to the front of the body
shop and a police officer came to his assistance. (Castro: Tr.
328; Moloon: Tr. 432-34; McDonald: Tr. 564-65). From talking to
Castro, whose mouth was full of blood, the officer understood
that "Diego Desmond" had inflicted Castro's injuries. (Castro:
Tr. 328-29; Ortiz: Tr. 458-61; McDonald: Tr. 567). Castro was
then taken by ambulance to the hospital, where he was admitted
for one month. (Castro: Tr. 329-30). Castro had surgery four
times while he was in the hospital and later returned for surgery
four more times. (Castro: Tr. 330-31). While he was in the
hospital, his jaw was wired shut for eight weeks. (Castro: Tr.
337-39). Photographs taken of Castro 17 days after the incident were
introduced into evidence. (Castro: Tr. 332-33). At trial, Castro
showed his various scars to the jury. (Castro: Tr. 317-24).
Castro also showed the jury that he was missing the ends of three
of his fingers on his right hand (Castro: Tr. 324). He testified
that at the time of the trial approximately a year and a half
after the incident he had no feeling on the left side of his
face from his chin to his ear and he had difficulty eating.
(Castro: Tr. 335-37). He also had very limited movement of and
strength in his hands. (Castro: Tr. 339). Castro testified that
he was unable to return to work as a mechanic and that he
suffered from pain as a result of his injuries. (Castro: Tr.
339-40). The parties stipulated to various facts regarding
Castro's injuries, including that Castro likely would have died
from loss of blood and/or infection without medical attention and
that he has several permanent disabilities as a result of the
incident. (Stipulation: Tr. 603-06).
Castro identified Ledesma as the man he knew as "Diego Ledesma"
and who had inflicted these injuries. (Castro: Tr. 340).
On cross-examination, Castro testified that there was no
written record of his agreement with Jose and that he did not
know whether the parts brought to him by Jose for use in the
Supra were stolen. (Castro: Tr. 369-73). Also, Castro admitted
that the body shop was in Perez's name because he was in the
country illegally and that although Castro ran the business on a
day-to-day basis, any taxes were paid by Perez. (Castro: Tr.
368-69). He also admitted that he paid some of his employees in
cash and withheld taxes from only one employee. (Castro: Tr.
2. The Defense Case
Ledesma testified in his own defense. He explained that in
mid-1995, Quezada, whom he knew from the neighborhood, had
approached him about buying a car, having it repaired, and selling it for a profit. (Ledesma: Tr. 613-14, 670-73). Ledesma
went to Alpine Motors to look at cars with Quezada and a man he
knew as "Ecuador" (Ledesma: Tr. 614-16, 671) that is, Castro.
Castro estimated that repairing the car that they ultimately
bought would cost $5000 and the parts $2000. (Ledesma: Tr.
616-17). Ledesma borrowed $3500 from his mother and he and his
wife put in some of their own money to buy and repair the car.
(Ledesma: Tr. 617-18, 711-13). The receipt for the car and the
title were in Ledesma's name alone because Ledesma knew someone
at Alpine Motors who gave him a better deal. (Ledesma: Tr. 619).
The car was brought from Alpine Motors to Castro's garage on a
flatbed truck. (Ledesma: Tr. 618). During the month that Castro
was repairing the car, Ledesma went to the garage about three
times to see how things were coming along. (Ledesma: Tr. 620). He
reported that he had no problem with Castro and had paid him for
the work. (Ledesma: Tr. 620-21).
After the car was repaired, it was taken to a public parking
garage. (Ledesma: Tr. 621). Ledesma was notified that Detective
McShane had taken the car from the garage and the next day
Ledesma went to see him. (Ledesma: Tr. 622-23). A detective told
Ledesma that they were investigating the car because the serial
numbers were not what they were supposed to be. (Ledesma: Tr.
625, 741-43). Ledesma told him that work had recently been done
on the car and the location of the garage but that he did not
know Ecuador's real name or have any sort of receipt for the
repairs. (Ledesma: Tr. 625-26). Ledesma went back to speak with
the detectives about a week later and went to see Castro that
same day. (Ledesma: Tr. 623, 626-28). Castro told Ledesma that he
would accompany him to his next appointment with the detectives.
(Ledesma: Tr. 628-29). However, when Ledesma returned to get
Castro to go to the appointment, Castro refused to go and said to
speak with Quezada. (Ledesma: Tr. 629-30). Ledesma testified that in November 1995, he again went to
Castro's shop, this time accompanied by his father. (Ledesma: Tr.
630). Castro once again agreed to go with Ledesma to speak to the
detectives (Ledesma: Tr. 630-31) but once again did not accompany
Ledesma to the appointment. (Ledesma: Tr. 632).
In February 1996, Ledesma went back to Castro's garage. When he
arrived, Castro and two other people were outside shoveling snow.
(Ledesma: Tr. 634-36). According to Ledesma, Castro started to
argue with him about the car and then started to raise his shovel
as if to hit Ledesma. (Ledesma: Tr. 634-37, 691-92). Ledesma
picked up another shovel that was resting against the wall.
(Ledesma: Tr. 636). The two began to fight for about five
minutes, during which time both men fell to the ground, dropped
the shovels, and began wrestling and fist fighting. (Ledesma: Tr.
In June 1996, Ledesma tried to bring a civil action against
Castro because he believed that Castro had changed the serial
numbers on the car. (Ledesma: Tr. 639-41). After obtaining the
necessary forms, Ledesma went to Castro's shop with his brother,
although his brother remained outside. (Ledesma: Tr. 641-42,
661-65, 703). When Ledesma arrived, Castro was talking on the
phone. (Ledesma: Tr. 642-43). When Ledesma showed Castro the
forms, Castro threw "some machine that you use to polish cars" at
Ledesma but did not hit him. (Ledesma: Tr. 643-45). Then Castro
picked up a pipe and Ledesma tried to run out of the garage but
could not because there were cars parked so that the only way out
was past Castro. (Ledesma: Tr. 646-48). Castro hit Ledesma
several times on his body with the pipe. (Ledesma: Tr. 649).
Castro was on top of Ledesma and Ledesma grabbed a machete.
(Ledesma: Tr. 649-50). Ledesma testified that he was "hysterical,
nervous" and that he and Castro were swinging at one another.
(Ledesma: Tr. 650). At some point the fight stopped, Ledesma saw Castro
bleeding, and he ran. (Ledesma: Tr. 651). When Ledesma found out
subsequently that detectives were looking for him, he turned
himself in. (Ledesma: Tr. 651-52).
On cross-examination, Ledesma described the pipe wielded by
Castro as three feet long and one-and-one-half-inches thick.
(Ledesma: Tr. 654-55). He stated that Castro was hitting him with
the pipe with such force that he believed Castro was trying to
kill him. (Ledesma: Tr. 653-56, 660). Before Ledesma picked up
the machete, Castro had hit him with the pipe approximately five
times on his hand, back, and arm. (Ledesma: Tr. 656-58, 700). He
did not know how many times Castro had hit him with the pipe
after he picked up the machete. (Ledesma: Tr. 658-60, 700-01).
Ledesma stated that he knew what he was doing when he struck
Castro with the machete the first, second, and third times but
that sometime thereafter he "lost the consciousness of what [he]
was doing." (Ledesma: Tr. 698-99, 701-02). Ledesma also testified
that when he picked up the machete, he had dropped the papers he
had brought with him onto the floor. (Ledesma: Tr. 694-97).
Ledesma managed to retrieve the papers and take them with him
when he left but he did not remember how or when he had done so.
(Ledesma: Tr. 696-98).
B. Instructions to the Jury
Following summations, the court instructed the jury on the law
applicable to the charges on the verdict sheet. The first
instruction was as to count four, for Assault in the Second
Degree, which related to the February 16 incident with the
shovel. (Tr. 929-30). The trial court listed the elements of that
charge (Tr. 930-34) and then gave an instruction as to Ledesma's
justification defense (Tr. 934-39). The court explained that the justification
defense applied to both the February 16 and the June 10
incidents. (Tr. 936, 942).
With respect to the June 10 incident, the judge charged the
jury first as to count six, Attempted Murder in the Second Degree
(Tr. 939-43) and the defense of "extreme emotional disturbance"
(Tr. 943-54). The court explained that if the jury found that
Ledesma had proven the defense of extreme emotional disturbance
by a preponderance of the evidence, they must "find the Defendant
guilty of the crime of Attempted Manslaughter in the First
Degree" (Tr. 944) because the defense has the effect of "reducing
Attempted Murder [in the Second Degree] to Attempted Manslaughter
in the First Degree" (Tr. 945-46). The court then provided the
jury with the definition of "extreme emotional disturbance" and
repeated the effect of such a finding. (Tr. 950-54).
The court also charged the jury as to count seven of the
indictment, Assault in the First Degree. (Tr. 954-57). Finally,
the jury was instructed as to count 11, Criminal Possession of a
Weapon in the Fourth Degree, which they were instructed not to
reach if they found Ledesma guilty on count six or count seven.
C. Verdict and Sentencing
The jury found Ledesma guilty of Assault in the Second Degree,
Attempted Murder in the Second Degree, Attempted Manslaughter in
the First Degree, and Assault in the First Degree. (Tr. 992-93).
Because the defense of extreme emotional disturbance operates to
reduce Attempted Murder in the Second Degree to Attempted
Manslaughter in the First Degree, the guilty verdict as to both
crimes appeared to the trial judge to be a "contradiction in
terms." (Tr. 996). Thus, the judge asked the jury to answer an
additional question, specifically, "[H]as the Defendant proven, by a preponderance of the evidence, that he was
suffering from extreme emotional disturbance at the time of the
incident on June 10th, 1996?" (Tr. 993). While defense counsel
had objected to this question on the ground that it might permit
the prosecution to "salvage" a verdict in its favor on the
attempted murder charge (Tr. 996), the jury answered the question
in the affirmative: that is, agreeing that Ledesma had in fact
proven extreme emotional disturbance (Tr. 999). The record
reflects that defense counsel inquired whether the initial
verdict as to attempted murder would be "dismissed or converted
into acquittal by virtue of the response." (Tr. 1000-01). The
record does not reflect the court's ruling on this particular
point, though it appears that a guilty verdict was entered only
as to the attempted manslaughter charge and the two assault
charges (see Sentencing: Tr. 2).
Thereafter, Ledesma was sentenced to three-and-a-half to seven
years in prison for Assault in the Second Degree, a consecutive
term of seven-and-a-half to 15 years in prison for Assault in the
First Degree, and a concurrent term of seven-and-a-half to 15
years for Attempted Manslaughter in the First Degree.
(Sentencing: Tr. 23-24). The total sentence was 11 to 22 years in
state prison. (Sentencing: Tr. 24).
D. Direct Appeal
Through new counsel, Ledesma appealed his conviction to the
Appellate Division, First Department, raising the following eight
grounds for relief:
Point I: [Ledesma's] conviction for Attempted
Manslaughter in the First Degree should be vacated
since it is a non-existent crime for which a verdict
cannot be rendered. (U.S. Const., Amend. XIV; N.Y.
Const., Art. I(6)).
Point II: [Ledesma] was denied effective assistance
of counsel in that his trial counsel failed to
cross-examine the alleged victim with regard to
establishing [Ledesma's] justification defense,
failed to object to the prosecutor's relentless attempts to inflame the passions of the jury, failed
to object to the court's jury charge on justification
as applied to count four of the indictment, and his
failure to call eyewitnesses who were available to
the defense and who would have established the
justification defense. (U.S. Const. Amend. XIV; N.Y.
Const. Art. I(6)).
Point III: The prosecutor failed to prove the charges
of Assault in the Second Degree, Penal Law § 120.05
Subd. 2 or Assault in the First Degree, Penal Law §
120.10 Subd. 1. beyond a reasonable doubt. (U.S.
Const. Amend. XIV, N.Y. Const. Art. I(6)).
Point IV: [Ledesma] was denied a fair trial when the
court failed to inquire into the possible misconduct
of a juror after both prosecution and defense rested.
(U.S. Const. Amend. XIV; N.Y. Const. Art. I(6)).
Point V: The prosecutor's misconduct during the trial
and summation was calculated to inflame and prejudice
the jury and appeal to the juror's [sic] sympathy.
The prosecutor also denigrated the defense and the
defendant. (U.S. Const. Amend XIV; N.Y. Const. Art
Point VI: The trial court improperly admitted into
evidence photographs of a gruesome and inflammatory
nature that did not prove or disprove a material fact
in issue and only served to arouse the passions of
the jury and resentment against the defendant. (U.S.
Const., Amend. XIV; N.Y. Const. Art. I(6)).
Point VII: The court's charge on justification as to
count four, Assault in the Second Degree was
incorrect and [Ledesma's] conviction on that count
should be reversed. (U.S. Const., Amend. XIV; N.Y.
Const. Art. I(6)).
Point VIII: [Ledesma's] sentence of 11 to 22 years in
state prison was unduly harsh, particularly in light
of the circumstances of the case and [Ledesma's] lack
of a prior record. [U.S. Const. Amend VIII; N.Y.
Const. Art. I(6)].
Brief for Defendant-Appellant, undated ("Pet. App. Div. Brief")
(reproduced as App. A to Petition Under 28 U.S.C. § 2254 for Writ of
Habeas Corpus by a Person in State Custody, filed August 21, 2003
(Docket #2) ("Petition") and as Ex. 1 to Affidavit in Opposition
to Petition for Habeas Corpus, filed January 22, 2004 (Docket #9)
("Resp. Opp.")), at 14, 16, 20, 22, 24, 26-27, 29. On December 10, 2002, the Appellate Division unanimously
affirmed Ledesma's conviction. People v. Ledesma, 300 A.D.2d 72
(1st Dep't 2002).
Thereafter, Ledesma, acting pro se, sought leave to appeal
to the New York Court of Appeals with respect to all eight issues
raised in his brief to the Appellate Division. See Letter from
Ledesma to the Clerk of the Court, dated April 2, 2003
(reproduced as App. B to Petition), at 2-3. On June 18, 2003,
leave to appeal was denied. People v. Ledesma, 100 N.Y.2d 563
E. The Instant Petition
Ledesma timely submitted this petition for writ of habeas
corpus to the Pro Se Office of this Court on July 18, 2003. See
Petition. In it, he raised the same eight grounds for relief that
he raised on direct appeal. See id. at App. C.
On September 3, 2003, Judge Lewis A. Kaplan issued an order
staying Ledesma's petition to allow him to exhaust his state
court remedies with respect to his claim of ineffective
assistance of counsel. See Order, filed September 3, 2003
(Docket #3), at 1-3. On direct appeal, the Appellate Division had
held that the claim should have been raised in a motion under
N.Y. Crim. Proc. Law § 440.10 as it primarily involved matters
outside of the record. Ledesma, 300 A.D.2d at 72. After his
petition was stayed, Ledesma wrote a letter to the court stating,
"I wish to withdraw the unexhausted claim challenging the
effectiveness of trial counsel's representation (Point II). I
wish to proceed only on the exhausted claims." Judge Kaplan
granted this request and reinstated the case to the active
docket. See Memorandum Endorsed Letter from Ledesma to the Hon.
Lewis A. Kaplan, filed September 30, 2003 (Docket #4), at 1.
Despite this ruling, the respondent addressed the ineffective
assistance claim in his memorandum of law opposing the petition. See Memorandum of Law, dated January 2004 ("Resp.
Mem.") (annexed to Resp. Opp.), at 23-27. Ledesma then addressed
the respondent's arguments in his traverse. See Traverse in
Opposition, filed May 24, 2004 (Docket #15) ("Traverse"), ¶¶
10-16. Based on the September 30, 2003 Memorandum Endorsement
withdrawing this claim entirely, however, it is not further
As a result, seven claims remain part of Ledesma's petition.
II. APPLICABLE LEGAL PRINCIPLES
A petition for writ of habeas corpus may not be granted with
respect to any claim that has been "adjudicated on the merits" in
the state courts unless the state court's adjudication: "(1)
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or (2)
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding." 28 U.S.C. § 2254(d). For a state
court decision to constitute an "adjudication on the merits," the
state court need only base its decision on "the substance of the
claim advanced, rather than on a procedural, or other, ground."
Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). It is not
necessary for the state court to refer to the federal aspect of a
claim or any federal law for the deferential standard to apply.
Id. at 312.
In Williams v. Taylor, the Supreme Court held that a state
court decision is "contrary to" clearly established federal law
only "if the state court applies a rule that contradicts the
governing law set forth" in Supreme Court precedent or "if the
state court confronts a set of facts that are materially
indistinguishable from a decision [of the Supreme Court] and
nevertheless arrives" at a different result. 529 U.S. 362, 405-06
(2000). The Williams Court also held that habeas relief is available under the "unreasonable application" clause only "if
the state court identifies the correct governing legal principle
from [the Supreme Court's] decisions but unreasonably applies
that principle to the facts of the prisoner's case." Id. at
413. A federal court may not grant relief "simply because that
court concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law
erroneously or incorrectly." Id. at 411. Rather, the state
court's application must have been "objectively unreasonable."
Id. at 409.
In addition, under 28 U.S.C. § 2254(a), federal habeas review
is available for a state prisoner "only on the ground that he is
in custody in violation of the Constitution or laws or treaties
of the United States." Errors of state law are not subject to
federal habeas review. See, e.g., Estelle v. McGuire,
502 U.S. 62, 67-68 (1991); DiGuglielmo v. Smith, 366 F.3d 130,
136-37 (2d Cir. 2004). To be entitled to habeas relief a
petitioner must demonstrate that the conviction resulted from a
state court decision that violated federal law. See, e.g.,
Estelle, 502 U.S. at 68.
It is not necessary to reach the question of whether the
federal nature of each of Ledesma's claims was properly presented
to the state courts, see Daye v. Attorney Gen., 696 F.2d 186,
190-94 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048
(1984), because each claim may still be denied on the merits.
See 28 U.S.C. § 2254(b)(2).
A. Conviction for Attempted Manslaughter in the First Degree
Ledesma's first ground for habeas relief is that he was
convicted of a "non-existent" crime: Attempted Manslaughter in
the First Degree. Petition at App. C; see also Pet. App. Div.
Brief at 14-15. Essentially, Ledesma argues that a New York Court
of Appeals case, People v. Martinez, 81 N.Y.2d 810 (1993), had concluded that attempted
manslaughter was a "non-existent" crime for which a verdict could
not be rendered. Pet. App. Div. Brief at 15.
Several statutes are relevant to Ledesma's argument. Under the
criminal attempt statute, "[a] person is guilty of an attempt to
commit a crime when, with intent to commit a crime, he engages in
conduct which tends to effect the commission of such crime." N.Y.
Penal Law § 110.00. The Murder in the Second Degree statute
provides, inter alia:
A person is guilty of murder in the second degree
1. With intent to cause the death of another person,
he causes the death of such person or of a third
person; except that in any prosecution under this
subdivision, it is an affirmative defense that:
(a) The defendant acted under the influence of
extreme emotional disturbance for which there was a
reasonable explanation or excuse, the reasonableness
of which is to be determined from the viewpoint of a
person in the defendant's situation under the
circumstances as the defendant believed them to be.
Id. § 125.25. The Manslaughter in the First Degree statute,
N.Y. Penal Law § 125.20, includes a general manslaughter
provision, subdivision (1), and a second provision that parallels
section 125.25(1)(a) of the second-degree murder statute quoted
above. These provisions provide as follows:
A person is guilty of manslaughter in the first degree
1. With intent to cause serious physical injury to
another person, he causes the death of such person or
of a third person; or
2. With intent to cause the death of another person,
he causes the death of such person or of a third
person under circumstances which do not constitute
murder because he acts under the influence of extreme
emotional disturbance, as defined in paragraph (a) of
subdivision one of section 125.25. The fact that
homicide was committed under the influence of extreme
emotional disturbance constitutes a mitigating circumstance reducing murder
to manslaughter in the first degree. . . .
Id. § 125.20.
The Martinez case which serves as the linchpin of Ledesma's
argument arises out of the first subsection of the Manslaughter
in the First Degree statute, not the second subsection, under
which Ledesma was convicted. See 81 N.Y.2d at 811-12.
Subsection (1) requires a showing of the defendant's "intent
to cause serious physical injury to another person" and
a showing that the result of the defendant's act was not the
physical injury of that person but rather the death of that
person (or another person). N.Y. Penal Law § 125.20(1) (emphasis
added). Where subsection (1) of the manslaughter statute is
involved, New York courts have held that there can be no attempt
to commit this crime. As one court put it, "Because the very
essence of a criminal attempt is the defendant's intention to
cause the proscribed result, it follows that there can be no
attempt to commit a crime which makes the causing of a certain
result criminal even though wholly unintended." People v.
Campbell, 72 N.Y.2d 602, 605 (1988). Inasmuch as N.Y. Penal Law
§ 125.20(1) "requires no proof of intent to cause death, the
proscribed result, . . . there can be no attempt to commit that
crime." Id. at 606 (discussing People v. McDavis, 97 A.D.2d 302,
303-04 (4th Dep't 1983)). Accordingly, Martinez held that
Attempted Manslaughter in the First Degree as charged under
subsection (1) is a "nonexistent" crime. See 81 N.Y.2d at
811-12 ("It is settled law that attempted manslaughter in the
first degree as charged here is a nonexistent crime."
(emphasis added) (citations omitted)).
In contrast, N.Y. Penal Law § 125.20(2) does require proof of
intent to cause death and reflects a legislative decision that "a
defendant who establishes the defense of extreme emotional disturbance may not be found guilty of murder (or attempted
murder), but only of first degree (or attempted first degree)
manslaughter," People v. Harris, 98 N.Y.2d 452, 517-18 (2002);
see also People v. Patterson, 39 N.Y.2d 288, 302 (1976)
("In New York, the prosecution is at all times required to prove,
beyond a reasonable doubt, the facts bearing [on] the defendant's
intent. That the defendant acted because of an extreme emotional
disturbance does not negate intent."), aff'd, 432 U.S. 197
(1977). Thus, New York cases have recognized either explicitly or
implicitly that an individual may properly be convicted of the
crime of Attempted Manslaughter in the First Degree where the
conviction results from the defendant's proving extreme emotional
disturbance as a defense to an attempted murder charge. See,
e.g., People v. Motter, 235 A.D.2d 582, 584 (3d Dep't 1997);
People v. Robinson, 143 A.D.2d 376, 377 (2d Dep't 1988).
Consistent with this case law, the Appellate Division held in
deciding Ledesma's claim:
Since [Ledesma] interposed the defense of extreme
emotional disturbance to the charge of attempted
murder in the second degree, he was properly
convicted of the otherwise non-existent crime of
attempted manslaughter in the first degree (see
People v. Motter, 235 A.D.2d 582, 584, lv denied
89 N.Y.2d 1038; People v. Robinson, 143 A.D.2d 376, 377,
lv denied 73 N.Y.2d 789).
Ledesma, 300 A.D.2d at 72.
The respondent argues that Ledesma's claim involves a question
of purely state law unreviewable by a federal habeas court. Resp.
Mem. at 2-4. Indeed, "[i]t is well established that it is within
the realm of the state court to define the conduct that
constitutes one specific offense as opposed to another, and what
punishment is merited for such conduct." Marsh v. Ricks, 2003
WL 145564, at *4 (S.D.N.Y. Jan. 17, 2003) (internal quotation
marks and citations omitted); accord Ponnapula v. Spitzer,
297 F.3d 172, 182 (2d Cir. 2002) ("Our federal constitution does
not dictate to the state courts precisely how to interpret their
own criminal statutes."); Jackson v. Bennett, 2002 WL 1770781, at *7 (S.D.N.Y. July 31, 2002) (no
federal constitutional violation "where petitioner's real
complaint is with the [state] courts' interpretation of the
definition of the [crime charged]").
Construing his petition broadly, however, it is possible that
Ledesma intends to raise the due process argument that, in order
to be convicted of a crime, a defendant must be given "fair
warning" that his conduct is criminal. See, e.g., United
States v. Lanier, 520 U.S. 259, 266-67 (1997). Thus, a
petitioner challenging a state court's interpretation of a state
criminal statute is entitled to relief if that interpretation was
so novel that it was not clear that the conduct was criminal, in
violation of the "fair notice" aspect of the Due Process Clause.
See Ponnapula, 297 F.3d at 183-84; accord Lanier, 520
U.S. at 267 ("the touchstone is whether the statute, either
standing alone or as construed, made it reasonably clear at the
relevant time that the defendant's conduct was criminal").
Here, there can be no serious argument that Ledesma was not on
notice that his conduct on June 10, 1996 was proscribed by
statute. First, the very acts that Ledesma engaged in were
obviously criminal and the statutes themselves were clear in
proscribing that conduct. Second, as already described, case law
in New York had explicitly permitted a conviction for Attempted
Manslaughter in the First Degree under subdivision (2) of the
statute as of the time of Ledesma's crime. Thus, Ledesma
obviously had "fair notice" that his conduct was criminal and
there was no violation of due process.
B. Sufficiency of the Evidence
Ledesma next claims that the prosecutor failed to prove beyond
a reasonable doubt the elements of Assault in the Second Degree
(with respect to the February 16, 1996 incident) and Assault in the First Degree (with respect to the June 10, 1996
incident), in violation of the Due Process Clause. See Petition
at App. C; see also Traverse ¶¶ 5-9; Pet. App. Div. Brief at
20-21. He also argues that the prosecution failed to disprove his
justification defense beyond a reasonable doubt. See Pet. App.
Div. Brief at 20-21. With respect to this claim, the Appellate
The verdict was based on legally sufficient evidence
and was not against the weight of the evidence.
Issues of credibility were properly considered by the
jury and there is no basis for disturbing its
Ledesma, 300 A.D.2d at 72. Habeas relief is available only if
this decision was "contrary to" or "an unreasonable application
of" clearly established federal law. See 28 U.S.C. § 2254(d).
The Due Process Clause of the Fourteenth Amendment prohibits a
criminal conviction "except upon proof beyond a reasonable doubt
of every fact necessary to constitute the crime." In re
Winship, 397 U.S. 358, 364 (1970). In light of Winship, the
Supreme Court has held that when reviewing a state court
conviction, a federal habeas court must consider whether there
was "sufficient evidence to justify a rational trier of the facts
to find guilt beyond a reasonable doubt." Jackson v. Virginia,
443 U.S. 307, 313 (1979). This standard applies with equal force
to the sufficiency of proof as to a defense, such as
justification under N.Y. Penal Law §§ 25.00(1), 35.00, which the
prosecution is required to disprove beyond a reasonable doubt.
See, e.g., Cross v. McGinnis, 2003 WL 21812024, at *6
(E.D.N.Y. July 23, 2003); Morales v. Jones, 1988 WL 90379, at
*2 (S.D.N.Y. July 26, 1988).
A habeas petitioner challenging the sufficiency of the evidence
underlying his conviction bears a "very heavy burden." Knapp v.
Leonardo, 46 F.3d 170, 178 (2d Cir.) (internal quotation marks
and citation omitted), cert. denied, 515 U.S. 1136 (1995). To
prevail, the petitioner must show that "upon the record evidence adduced at the trial no
rational trier of fact could have found proof of guilt beyond a
reasonable doubt." Jackson, 443 U.S. at 324; accord
Ponnapula, 297 F.3d at 179. In conducting this inquiry, all of
the evidence and all reasonable inferences that may be drawn from
the evidence are to be considered in the light most favorable to
the prosecution. Jackson, 443 U.S. at 319; accord Maldonado
v. Scully, 86 F.3d 32, 35 (2d Cir. 1996). Furthermore,
"assessments of the weight of the evidence or the credibility of
witnesses are for the jury" and thus a habeas court must "defer
to the jury's assessments of both of these issues." Maldonado,
86 F.3d at 35; accord Rosa v. Herbert, 277 F. Supp.2d 342,
347 (S.D.N.Y. 2003); Fagon v. Bara, 717 F. Supp. 976, 979-80
(E.D.N.Y. 1989) ("this court is not free to make credibility
judgments about the testimony . . . or to weigh conflicting
Under New York law, "[a] person may . . . use physical force
upon another person when and to the extent he reasonably believes
such to be necessary to defend himself or a third person from
what he reasonably believes to be the use or imminent use of
unlawful physical force by such other person." N.Y. Penal Law §
35.15(1). Deadly physical force may not be used unless the other
person is using or about to use deadly physical force and the
actor cannot avoid the use of deadly physical force by
retreating. Id. § 35.15(2)(a). Furthermore, the actor cannot
have been, except in very limited circumstances, the initial
aggressor. Id. § 35.15(1)(a)-(b).
With respect to the February 16, 1996 incident, Ledesma argues
that (1) Castro never reported the incident to the police; (2) no
weapon or dangerous instrument was ever offered in evidence; (3)
no medical evidence was introduced showing that Castro's injuries
were the result of blows from a shovel or of any altercation at
all; and (4) available witnesses were never called to testify.
Pet. App. Div. Brief at 20. As noted, Ledesma was convicted of
Assault in the Second Degree with respect to this incident. (See Tr. 992). Under N.Y.
Penal Law § 120.05(2), a person is guilty of this crime when
"[w]ith intent to cause physical injury to another person, he
causes such injury to such person . . . by means of a deadly
weapon or a dangerous instrument." Further, "physical injury"
means "impairment of physical condition or substantial pain."
Id. § 10.00(10).
Castro testified that Ledesma hit him on the hand and on the
head with a snow shovel and that he lost consciousness and had
two broken fingers as a result. (Castro: Tr. 302-03). Ledesma
maintained in his testimony that he struck Castro with the shovel
only after Castro raised his shovel as if to hit him. (Ledesma:
Tr. 634-37, 691-92). He thus maintained that his actions were in
self-defense. (Ledesma: Tr. 636-38).
It was well within the province of the jury to choose to credit
Castro's testimony over Ledesma's. See, e.g., Maldonado, 86
F.3d at 35. The prosecution was not required to introduce any
corroborating evidence as "the testimony of a single,
uncorroborated eyewitness is generally sufficient to support a
conviction." United States v. Danzey, 594 F.2d 905, 916 (2d
Cir. 1979); accord Edwards v. Jones, 720 F.2d 751, 755 (2d
Cir. 1983) ("while [the sole eyewitness's] testimony and
character were less than inspiring," his testimony was
nevertheless sufficient to support a conviction under Danzey as
the jury had the opportunity to evaluate the credibility of the
witness); see also Tibbs v. Florida, 457 U.S. 31, 45 n. 21
(1982) ("In this case, [the victim] provided eyewitness testimony
to the crimes. If the jury believed her story, the State's
presentation was more than sufficient to satisfy due process.").
In sum, with respect to the February 16, 1996 incident, Ledesma
has not established that "upon the record evidence adduced at the
trial no rational trier of fact could have found proof of guilt
beyond a reasonable doubt," Jackson, 443 U.S. at 324. As for the June 10, 1996 incident, Ledesma argues that the
prosecution failed to disprove his justification defense beyond a
reasonable doubt. In support of this argument, Ledesma points out
that (1) he testified that Castro attacked him with a metal pipe;
(2) he had no opportunity to retreat; (3) no witness testified
that he walked into the garage with a weapon; (4) he left the
scene as soon as he had "sufficiently repelled [Castro's]
attack"; (5) he had the opportunity to deliver a "fatal blow" but
did not; and (6) there was no medical testimony as to whether or
not the wounds suffered by Castro were defensive in nature. Pet.
App. Div. Brief at 20-21.
Again, Ledesma's claim relies on the mistaken view that the
jury was under any obligation to accept his testimony as given.
It was undisputed that Ledesma used "deadly physical force"
against Castro inasmuch as the parties stipulated to the fact
that Castro likely would have died as a result of the injuries
inflicted by Ledesma if he had not received medical attention
(Stipulation: Tr. 604). See N.Y. Penal Law § 10.00(11) ("Deadly
physical force" means "physical force which . . . is readily
capable of causing death or other serious physical injury."). The
jury could have found that Ledesma was not justified in using
deadly physical force if they found that the prosecution had
proven any of the following facts beyond a reasonable doubt: (1)
Ledesma did not reasonably believe that such force was necessary
to defend himself; (2) Ledesma did not reasonably believe that
Castro was using or about to use deadly physical force against
him; (3) Ledesma could have avoided the use of deadly physical
force by retreating in complete safety; or (4) Ledesma was the
initial aggressor. See id. § 35.15; Tr. 938-39; see also
Brown v. Artuz, 124 F.3d 73, 81 (2d Cir. 1997), cert.
denied, 522 U.S. 1128 (1998).
Considering the evidence in the light most favorable to the
prosecution, the evidence certainly showed that Castro did not
use or threaten to use any physical force against Ledesma before Ledesma begun cutting him with the machete. (Castro: Tr.
311-14; Tenecella: Tr. 398-99). Thus, the jury simply may have
credited Castro and/or Tenecella's testimony over Ledesma's. Or
the jury may have believed Ledesma's testimony as to who started
the fight (see Ledesma: Tr. 943-50) but still rejected his
justification defense based on the finding that the force used by
Castro was not deadly or that Ledesma could have retreated. In
sum, Ledesma has failed to establish that no rational trier of
fact could have found that his justification defense was
disproved beyond a reasonable doubt.
C. Inquiry into Juror Misconduct
Ledesma argues that his due process rights were denied by the
court's failure to inquire into the possible misconduct of a
juror. Petition at App. C; see also Pet. App. Div. Brief at
22-23. The relevant facts supporting this claim are as follows:
after both sides had rested but before summations, defense
counsel apparently brought to the court's attention that a
conversation may have occurred between a juror and Sonya Balbuen,
an intern for another judge. (See Tr. 756). Balbuen had been in
the courtroom the previous day observing the trial. (Tr. 756).
The court questioned Balbuen, who initially stated that nothing
had occurred between her and any of the jurors. (Tr. 756). When
the judge asked her if she knew any of the jurors, she responded,
"Not really. I mean, I know where they live because I go around
there. That's about it." (Tr. 757). Answering questions posed by
defense counsel, Balbuen then acknowledged that a male juror had
recognized her from the neighborhood and had said hello to her.
(Tr. 757). When asked if the juror gave her any idea of how he
was thinking about the case, Balbuen initially answered, "Not
really." (Tr. 758). After the judge assured her that she had not
done anything wrong and was not going to be in any trouble, she
was asked the same question again, to which she responded, "No." (Tr. 758-59). Defense counsel stated that he had
no further questions and Balbuen was excused from the robing
room. (Tr. 759-60).
Defense counsel then argued that he needed to explore the issue
further because Balbuen "somewhat hedged" in her answers. (Tr.
760-61). He suggested posing a question to the jury as a whole
about any conversations they may have had. (Tr. 761). The court
stated, "I have no reason to believe that anything actually
occurred and I see no reason for further enquiry." (Tr. 761).
Defense counsel noted his objection. (Tr. 761). The juror in
question was never identified on the record.
On appeal, Ledesma argued that the court "abused its discretion
. . . by failing and refusing to even briefly and privately
interview the juror in question or even identifying [sic] the
juror." Pet. App. Div. Brief at 23. The Appellate Division
rejected this claim on the merits, holding:
The court conducted a suitable inquiry concerning a
conversation between a juror and an intern who lived
near the juror and worked for a judge other than the
trial court. The inquiry established that the case
was never discussed and that the matter was innocuous
and trivial. Furthermore, the court repeatedly
instructed the jury not to discuss the case with
anyone (People v. Footman, 297 A.D.2d 566).
Ledesma, 300 A.D.2d at 72.
The Supreme Court "has long held that the remedy for
allegations of juror partiality is a hearing in which the
defendant has the opportunity to prove actual bias." Smith v.
Phillips, 455 U.S. 209, 215 (1982); accord Remmer v. United
States, 347 U.S. 227, 229-30 (1954) ("The trial court . . .
should determine the circumstances, the impact thereof upon the
juror, and whether or not it was prejudicial, in a hearing with
all interested parties permitted to participate."). However, a
court is not required to hold a hearing in every instance in
which juror partiality is alleged. See, e.g., United States v. Ianniello,
866 F.2d 540, 543 (2d Cir. 1989) ("The duty to investigate arises only
when the party alleging misconduct makes an adequate showing of
extrinsic influence to overcome the presumption of jury
impartiality." (internal quotation marks and citations omitted));
see also Wheel v. Robinson, 34 F.3d 60, 65 (2d Cir. 1994)
(trial judge accorded "broad discretion" in treating charges of
juror misconduct), cert. denied, 514 U.S. 1066 (1995).
In this case, the trial court questioned Balbuen as soon as her
potential communication with a juror was brought to its
attention. (See Tr. 756). Defense counsel was permitted to ask
additional questions. (Tr. 757-59). Through this inquiry, the
court learned that a juror had said hello to Balbuen, an intern
for a different judge, whom the juror recognized from the
neighborhood. (Tr. 756-57). Balbuen confirmed that they did not
speak about the case. (Tr. 758-59). Because no showing of an
improper extrinsic influence was made, there was no reason to
doubt the impartiality of the juror in question and the court was
not required to conduct further inquiry. Certainly, Ledesma has
not shown that the Appellate Division's decision on this issue
was "contrary to" or "an unreasonable application of" clearly
established federal law.
D. Prosecutor's Statements
Ledesma argues that the prosecutor's summation inflamed and
prejudiced the jury, appealed to the jurors' emotions, and
denigrated the defense and Ledesma himself. Petition at App. C;
see also Traverse ¶ 17; Pet. App. Div. Brief at 24-25. This
claim is based on the prosecutor's (1) references to Castro's
being "chopped" by Ledesma; (2) suggestion that the jury should
be sympathetic towards Castro because he was injured; and (3)
statements discrediting the defense's view of the evidence. See
Pet. App. Div. Brief at 24. The Appellate Division reviewed this claim and found that "[t]he challenged portions of
the prosecutor's summation were within the broad bounds of
permissible rhetoric and did not deny [Ledesma] a fair trial."
Ledesma, 300 A.D.2d at 72 (citations omitted).
When a federal habeas court reviews comments made by the
prosecutor during trial, "[t]he relevant question is whether the
prosecutor's comments `so infected the trial with unfairness as
to make the resulting conviction a denial of due process.'"
Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting
Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).
"Prosecutorial misconduct during summation is grounds for
reversal only when the remarks caused substantial prejudice to
the defendant." Gonzalez v. Sullivan, 934 F.2d 419, 424 (2d
Cir. 1991) (internal quotation marks and citations omitted). In
evaluating whether the prosecutor's remark deprived petitioner of
a fair trial, the remark should be considered in context.
Blissett v. Lefevre, 924 F.2d 434, 440 (2d Cir.), cert.
denied, 502 U.S. 852 (1991); see Darden, 477 U.S. at 179.
During the course of the trial, the prosecutor used the word
"chopped" several times to describe Ledesma's use of the machete
against Castro. (E.g., Castro: Tr. 315-16, 341; Tr. 846-47). In
addition, during summation, the prosecutor made the following
comment: "You heard that [Castro's] arm sort of fell off when
E.M.S. picked him up and now you see Mr. Castro sitting on the
stand He has a lot of bumps, a lot of cuts, he's missing
pieces. . . ." (Tr. 847). All of these comments were an accurate
summary of the record, which reflected that Castro had 25 cuts on
his body from Ledesma's machete attack (Castro: Tr. 311-24).
Castro testified that his arm was cut "so badly that it cut the
bone off and my arm was hanging on by a little piece." (Castro:
Tr. 315). Moloon also testified that when the paramedics picked
Castro up, his arm "just fell off" (Moloon: Tr. 433) and the parties stipulated that
Castro's "right arm . . . was severed through the bone and
remained attached by flesh only" (Stipulation: Tr. 605). In
addition, the record established that the tips of three of
Castro's fingers were missing as a result of the blows. (Castro:
Tr. 324, 339; Stipulation: Tr. 605). Because the prosecutor's
comments were based on the evidence in the record, they were not
improper. See, e.g., Scott v. Senkowski, 2002 WL 31051592,
at *8 (E.D.N.Y. Aug. 15, 2002) ("The prosecutor's statement . . .
while overly colorful, was, in fact, a fair statement of the
record."); see also United States v. Tocco, 135 F.3d 116,
130 (2d Cir.) ("The prosecution and the defense are generally
entitled to wide latitude during closing arguments, so long as
they do not misstate the evidence."), cert. denied,
523 U.S. 1096 (1998).
Ledesma also complains that the prosecutor improperly appealed
to the jurors' sympathy in summation. See Pet. App. Div. Brief
at 24. In summation, the prosecutor stated:
One of the things I want to point out here, [defense
counsel] very carefully said to you you're not
supposed to decide this case on sympathy for Mr.
Castro, and you're not. You can be sympathetic and I
submit you should be to Mr. Castro because he's an
injured person, but you're not supposed to decide the
case out of sympathy for him.
. . . .
. . . [S]o don't have any sympathy in this case, not
for [Ledesma] or [for] Mr. Castro. When the case is
over you can have all the sympathy you want, but
decide this case on the facts.
(Tr. 852-53). The trial judge later instructed the jury that
sympathy and prejudice were to be "totally disregarded." (Tr.
Viewing the prosecutor's statements in context, see
Blissett, 924 F.2d at 440, they did not improperly appeal to
the jurors' sympathy for Castro. Instead, the prosecutor's
statements carefully emphasized that the jurors were not to decide the case
out of sympathy. See Edmonds v. McGinnis, 11 F. Supp.2d 427,
437-38 (S.D.N.Y. 1998) (no due process violation where
prosecutor's summation drew attention to the victim's mother's
last image of her teenage son with his "brains blown out").
Ledesma's final complaint with regard to the prosecutor's
summation is that the prosecutor denigrated the defense by
stating that it would be "preposterous" to adopt the defense's
view of the evidence and that the defense "invented" the idea
that there were stolen parts in the car. Pet. App. Div. Brief at
24. The first comment was made in discussing the credibility of
Moloon, who saw Ledesma leave the body shop carrying a bloody
machete and get into a car with two other people (Moloon: Tr.
427-30, 436-37). The prosecutor stated:
Mr. Moloon doesn't know anybody in this case. Mr.
Moloon didn't know Mr. Castro or ha[ve] anything to
do with the body shop. He didn't know [Ledesma], [or]
this person Quezada. He didn't know the detectives.
He didn't know anybody. He had nothing to do with
. . . .
. . . [F]or you to conclude that Reynaldo Moloon is
either inaccurate or dishonest would be preposterous,
Reynaldo Moloon is one of those good citizens, I
submit, who didn't have to get involved, who didn't
know anybody, who has no stake in this case and
doesn't know anybody. . . .
. . . .
A lot of people don't want to get involved,
especially if they have no stake in the case. Yet Mr.
Moloon came in here, working, no prior record, lives
at home with his mom, I submit a good-samaritan
person, and he says to you that there were two people
in the car waiting for Mr. Ledesma.
Now if you want to ignore that, that single piece of
evidence shows you that [Ledesma] did not tell you
the truth when he was on the stand, that's how you start to think about, was Mr. Tenecella honest when
he said there were two men involved in this case,
helping Mr. Ledesma, because you have a guy outside
who I submit to you, his credibility is as pure as
the driven snow who says to you that Mr. Ledesma is
not telling the truth about how many men came to
assist him and for you to ignore that one very small
but very, very important piece of evidence says that
you're not interested in the credibility of the
witnesses because that establishes
[Defense counsel]: Objection, your Honor.
The Court: Overruled.
Prosecutor: Because that establishes one, that Mr.
Ledesma isn't telling the truth about who came with
him and two, that Mr. Tenecella has very good reason
to say that there were two men because Mr. Moloon
says there were two men and Mr. Moloon is not the
friend of Castro, Mr. Moloon doesn't know who Castro
is. Mr. Moloon doesn't know anybody in this case,
including me or [Ledesma].
That's where you start about thinking about
credibility and honesty in this case.
The comments as to Moloon's impartiality are consistent with
the record. (See Moloon: Tr. 420-23 (indicating that Moloon did
not know any of the witnesses in the case or have any connection
to the case other than what he witnessed). As for the fact that
the prosecutor suggested that there was no reason to conclude
that Moloon's testimony was inaccurate or dishonest (Tr. 855) and
that his credibility was "as pure as the driven snow" (Tr. 857),
these exhortations were merely "submitted" to the jury rather
than being presented as the prosecutor's personal vouching for
the credibility of Moloon. As the Second Circuit has noted in a
In the present case the prosecutor did not suggest
that he had special knowledge of facts not before the
jury. He "submit[ted]" that the witnesses were
credible, not that he personally knew the facts, and
then directed the jury's attention to the evidence
supporting his contention. . . . Because the
prosecutor did not imply the existence of extraneous proof we
cannot say that his statements were an improper
vouching for the credibility of witnesses.
United States v. Perez, 144 F.3d 204
, 210 (2d Cir. 1998)
(internal quotation marks omitted); accord United States v.
Newton, 369 F.3d 659
, 681-82 (2d Cir. 2004) (prosecutor's
submission of certain credibility conclusions for jury's
consideration did not qualify as impermissible vouching).
As for the second comment regarding the defense having
"invented" the idea that there were stolen parts in the car that
was seized (Tr. 866), the comment was made in response to a
defense argument that it was reasonable for Ledesma to believe
that Castro may have used stolen parts in repairing his car (Tr.
801-03), and thus was entirely proper. See Tocco, 135 F.3d at
130 ("Under the invited or fair response doctrine, the defense
summation may open the door to an otherwise inadmissible
prosecution rebuttal."); accord Palmer v. Senkowski, 2002 WL
54608, at *5 (S.D.N.Y. Jan. 15, 2002). Moreover, the objection to
this comment was sustained and the prosecutor rephrased the
comment. (See Tr. 866 (defense had "come up with this idea that
there were stolen parts in that car")). The prosecutor then
discussed at length the evidence in the record that formed the
basis for his argument. (See Tr. 866-70).
In sum, none of the prosecutor's comments "so infected the
trial with unfairness as to make the resulting conviction a
denial of due process," Darden, 477 U.S. at 181 (internal
quotation marks and citation omitted). Nor did any of the
comments "cause substantial prejudice to the defendant,"
Gonzalez, 934 F.2d at 424. E. Admission of Inflammatory Photographs
Ledesma challenges the admission into evidence of certain
photographs depicting Castro's injuries. Petition at App. C;
see also Pet. App. Div. Brief at 26. Ledesma contends that
these photographs were gruesome and were only introduced to
inflame the passions of the jury rather than to prove or disprove
a material fact in issue. See Pet. App. Div. Brief at 26. With
respect to this issue, the Appellate Division held that "[t]he
court properly admitted photographs of the victim showing the
nature and gravity of his injuries, since they were relevant to
the issue of defendant's homicidal intent, as well as his
justification defense." Ledesma, 300 A.D.2d at 72-73 (citations
Rulings by state trial courts on evidentiary matters are
generally a matter of state law and pose no federal
constitutional issue. Roberts v. Scully, 875 F. Supp. 182, 189
(S.D.N.Y.), aff'd, 71 F.3d 406 (2d Cir. 1995). Thus, habeas
relief is not available unless the alleged error resulted in a
trial that "deprive[d] the defendant of fundamental fairness,"
thereby violating the defendant's constitutionally guaranteed due
process rights. Rosario v. Kuhlman, 839 F.2d 918, 924 (2d Cir.
1988); accord Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir.
1998) ("The introduction of improper evidence against a defendant
does not amount to a violation of due process unless the evidence
is so extremely unfair that its admission violates fundamental
conceptions of justice." (internal quotation marks and citation
omitted)). "[B]ut even an error of constitutional dimensions will
merit habeas relief only if it had a `substantial and injurious
effect or influence in determining the jury's verdict.'"
Benjamin v. Greiner, 296 F. Supp.2d 321, 332 (E.D.N.Y. 2003)
(quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)
(quoting Kotteakos v. United States, 328 U.S. 750, 776
(1946))). A decision to admit photographs into evidence constitutes an
evidentiary ruling governed by state law. In New York,
photographs are generally admissible if they tend to prove or
disprove some material fact in issue, even if the photographs
portray a "gruesome spectacle." People v. Pobliner, 32 N.Y.2d 356,
369-70 (1973) (internal quotation marks and citations
omitted), cert. denied, 416 U.S. 905 (1974).
The first two photographs in question depict Castro at the
crime scene immediately after the incident. (See Tr. 200-11).
The prosecution argued that they should be admitted because they
tended to show: (1) based on the visible wound on Castro's jaw
and the amount of blood on Castro and on the sidewalk, that
Ledesma intended to kill Castro (Tr. 208-12); and (2) why the
police had difficulty understanding Castro when he told them who
had inflicted his wounds (Tr. 209-10). The third photograph
depicts a fingertip on the ground of the body shop. (See
McDonald: Tr. 580). This photograph was intended to show: (1) the
dangerousness and sharpness of the machete (Tr. 363-65, 388,
391); and (2) that Castro could not have been wielding a metal
pipe at the time he was struck as Ledesma claimed (Tr. 388-92).
Both of these issues were relevant to Ledesma's intent and his
Because those photographs were relevant to matters raised at
trial, their admission did not violate New York law. See
Pobliner, 32 N.Y.2d at 369-70. Moreover, even if the
introduction of the photographs was erroneous, their admission
could not have had a "substantial and injurious" effect on the
jury's verdict, given other testimony as to how much blood Castro
lost as a result of the incident (Castro: Tr. 329; Moloon: Tr.
432-33; McDonald: Tr. 565, 580; Stipulation: Tr. 604) and the
fingertips he lost (Castro: Tr. 324, 339; McDonald: Tr. 580;
Stipulation: Tr. 605). Notably, federal habeas courts have consistently denied relief
where gruesome or graphic photographs are admitted as long as the
photographs bear relevance to the issues being tried. See,
e.g., Benjamin, 296 F. Supp.2d at 332 (photographs depicting
how and how much the victim bled relevant and therefore properly
admitted); Sides v. Senkowski, 281 F. Supp.2d 649, 655
(W.D.N.Y. 2003) (photograph of gunshot wound showed that wound
was inflicted at close range and thus was probative of
defendant's intent); Robles v. Senkowski, 2002 WL 441153, at
*6-*7 (S.D.N.Y. Mar. 21, 2002) (photograph depicting posture of
deceased, condition of room, and wounds of deceased properly
admitted); Rivera v. Scully, 1993 WL 454209, at *4 (S.D.N.Y.
Nov. 2, 1993) (photograph showing extent of beating victim
received at petitioner's hands relevant to justification defense
and intent), aff'd, 40 F.3d 1237 (2d Cir. 1994).
F. Justification Charge
Ledesma argues that the trial court's charge as to the
justification defense was incorrect because the court charged the
jury pursuant to N.Y. Penal Law § 35.15(2) relating to the use
of "deadly physical force" as to both Assault in the First
Degree and Assault in the Second Degree. See Petition at App.
C; Traverse ¶¶ 3-4; Pet. App. Div. Brief at 27-28. He argues that
because he was charged with causing merely "physical injury" to
Castro on February 16, 1996, see N.Y. Penal Law § 120.05(2)
(Assault in the Second Degree) as opposed to "serious physical
injury," see id. § 120.10(1) (Assault in the First Degree)
the court should have charged the jury on the justification
defense for the use of "physical force" under N.Y. Penal Law §
35.15(1) rather than "deadly physical force" under N.Y. Penal Law
§ 35.15(2). See Pet. App. Div. Brief at 27-28. The Appellate Division did not specifically address Ledesma's
justification charge claim on direct review, instead stating,
"[Ledesma's] remaining contentions are unpreserved and we decline
to review them in the interest of justice. Were we to review
these claims, we would reject them." Ledesma, 300 A.D.2d at 73.
Although the Appellate Division did not explicitly describe the
reason why the claim was "unpreserved," the prosecution had
argued in its brief on appeal that the claim was unpreserved
because the defendant had made no objection to the court's charge
as given. See Respondent's Brief, dated October 2002
(reproduced as Ex. 2 to Resp. Opp.), at 53.
Indeed, the record is clear that defense counsel did not object
to any portion of the jury charge. (See Tr. 967-68). During the
preliminary charge conference, defense counsel requested that the
trial court charge the jury on the justification defense "both as
to deadly physical force and physical force for the two separate
instances in this case" and the trial court agreed. (Tr. 775).
However, when the court later charged the jury only as to deadly
physical force (Tr. 935-39), defense counsel raised no objection
(Tr. 967-68). New York law requires that "[w]hen a Judge grants a
request to charge and then fails to deliver the charge as
requested, the requesting party has an obligation to draw the
error to the Judge's attention." People v. Whalen, 59 N.Y.2d 273,
Where, as here, a state court rejects a petitioner's claim
because the petitioner failed to comply with a state procedural
rule, the procedural default constitutes an "independent and
adequate" ground for the state court decision. See, e.g.,
Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). Although
procedurally defaulted claims are deemed exhausted for habeas
purposes, a procedural default will "bar federal habeas review of
the federal claim, unless the habeas petitioner can show `cause' for the default and `prejudice
attributable thereto,' or demonstrate that failure to consider
the federal claim will result in a `fundamental miscarriage of
justice.'" Harris v. Reed, 489 U.S. 255, 262 (1989) (citation
omitted); accord Coleman, 501 U.S. at 749-50; Fama v. Comm'r
of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000); see also
Harris, 489 U.S. at 264 n. 10 ("[A]s long as the state court
explicitly invokes a state procedural bar rule as a separate
basis for decision," the independent and adequate state ground
doctrine "curtails reconsideration of the federal issue on
federal habeas."). To show a "fundamental miscarriage of
justice," a petitioner must demonstrate "actual innocence."
See, e.g., Calderon v. Thompson, 523 U.S. 538, 559 (1998);
Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002).
1. The "Independent" Requirement
While the Appellate Division did not specifically state the
basis for its holding that the issue was not preserved, its terse
statement that the issue was "unpreserved" is sufficient to show
that it was relying on a procedural bar. See, e.g., Harris,
489 U.S. at 265 n. 12. In addition, the procedural bar precludes
federal habeas review even where, as here, the court proceeds to
rule on the merits in an alternative holding. See, e.g.,
id. at 264 n. 10; Velasquez v. Leonardo, 898 F.2d 7, 9 (2d
Cir. 1990) (per curiam). Furthermore, that the Court of Appeals
issued a summary denial of leave to appeal is of no moment
because where "the last reasoned opinion on the claim explicitly
imposes a procedural default" as is true of the Appellate
Division's decision in this case a federal habeas court "will
presume that a later decision rejecting the claim did not
silently disregard that bar and consider the merits." Ylst v.
Nunnemaker, 501 U.S. 797, 803 (1991); accord Levine v. Comm'r
of Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995) (federal habeas
court looks to Appellate Division's reliance on procedural bar
where Court of Appeals issues summary denial of leave to appeal). Thus, the procedural
default relied upon by the Appellate Division constituted an
"independent" state law ground for the decision.
2. The "Adequate" Requirement
The remaining question is "whether the state ground relied upon
is `adequate' to preclude federal habeas review," Garcia v.
Lewis, 188 F.3d 71, 77 (2d Cir. 1999). A procedural bar is
"adequate" if it is based on a rule that is "`firmly established
and regularly followed' by the state in question." Id. (quoting
Ford v. Georgia, 498 U.S. 411, 423-24 (1991)). Whether
application of the procedural rule is "firmly established and
regularly followed" must be judged in the context of "the
specific circumstances presented in the case, an inquiry that
includes an evaluation of the asserted state interest in applying
the procedural rule in such circumstances." Cotto v. Herbert,
331 F.3d 217, 240 (2d Cir. 2003) (citing Lee v. Kemna,
534 U.S. 362, 386-87 (2002)). The Second Circuit has set forth the
following "guideposts" for making this determination:
(1) whether the alleged procedural violation was
actually relied on in the trial court, and whether
perfect compliance with the state rule would have
changed the trial court's decision; (2) whether state
caselaw indicated that compliance with the rule was
demanded in the specific circumstances presented; and
(3) whether petitioner had "substantially complied"
with the rule given "the realities of trial," and,
therefore, whether demanding perfect compliance with
the rule would serve a legitimate governmental
Id. (citing Lee, 534 U.S. at 381-85).
Application of these guideposts to Ledesma's case leads to the
conclusion that the procedural bar relied upon by the Appellate
Division is one that is "firmly established and regularly
followed" and thus "adequate." With respect to the first
guidepost, Ledesma's failure to object to any portion of the jury
charge was "actually relied on" by the trial court in the sense that the trial court was never given an opportunity to cure the
specific problem alleged by giving a supplemental instruction
before the jury began deliberating. Indeed, this is a case where
compliance with the rule would almost certainly have changed the
court's decision since it had earlier agreed to deliver the
requested charge (see Tr. 775).
As for the second consideration, it is well-settled under New
York law that the failure to timely object to a jury charge
precludes appellate review of that instruction, even in the
circumstance where counsel had explicitly requested, and the
court had indicated that it would give, a charge other than the
one given. See, e.g., Whalen, 59 N.Y.2d at 280; People v.
Moultrie, 6 A.D.3d 730, 730 (2d Dep't 2004); People v. Moore,
300 A.D.2d 198, 198 (1st Dep't 2002); People v. Mobley,
176 A.D.2d 211, 211-12 (1st Dep't 1991). Although N.Y. Crim. Proc.
Law § 470.05(2) provides that "a party who without success
has either expressly or impliedly sought or requested a
particular . . . instruction, is deemed to have thereby protested
the court's ultimate . . . failure to . . . instruct accordingly
sufficiently to raise a question of law with respect to such
. . . failure regardless of whether any actual protest thereto
was registered" (emphasis added), the New York Court of Appeals
has explicitly held that this provision is not applicable where,
as here, the party successfully requests a specific instruction
and the court then fails to deliver such instruction as
requested. See Whalen, 59 N.Y.2d at 280. In such a situation,
the party who requested the charge must bring the error to the
court's attention following the charge in order to preserve any
objection. Id. Thus, state case law indicates that "compliance
with the rule was demanded in the specific circumstances
presented," Cotto, 331 F.3d at 240.
The final guidepost likewise fails to help Ledesma for there is
no argument that he "substantially complied" with the state
procedural rule. Defense counsel raised no objection to the charge when specifically offered the opportunity to do so.
(See Tr. 967-68). Thus, the trial court was not alerted to the
alleged error and Ledesma obviously did not "ma[ke] his position
. . . known to the court," N.Y. Crim. Proc. Law § 470.05(2).
In sum, analysis of the Cotto "guideposts" demonstrates that
the Appellate Division's reliance on the state procedural rule in
this situation constitutes both an "independent" and an
"adequate" ground for its decision. Ledesma's claim is thus
procedurally defaulted. Consistent with this conclusion, the
Second Circuit has held that the failure to object to a jury
instruction constitutes a procedural default under New York law
barring habeas review. See Reyes v. Keane, 118 F.3d 136, 138
(2d Cir. 1997) ("A state prisoner who fails to object to a jury
instruction in accordance with state procedural rules
procedurally forfeits that argument on federal habeas review.");
accord Cummings v. Artuz, 237 F. Supp.2d 475, 485 (S.D.N.Y.
2002); Lopez v. Scully, 614 F. Supp. 1135, 1139-40 (S.D.N.Y.
1985); see also Engle v. Isaac, 456 U.S. 107, 124-25, 135
(1982) (failure to make contemporaneous objection to jury
instructions in compliance with state law constitutes procedural
Even under a liberal construction of his pro se petition
and reply papers, see Haines v. Kerner, 404 U.S. 519, 520-21
(1972) (per curiam), Ledesma makes no claim of circumstances
constituting cause for the procedural default. Nor has he
provided evidence of "actual innocence." Thus, the procedural
default cannot be excused and federal habeas review of the claim
Ledesma's final contention is that his sentence of 11 to 22
years in state prison was unduly harsh in light of the
"circumstances of the case" and his lack of a prior record.
Petition at App. C; see also Pet. App. Div. Brief at 29-30. At
sentencing, defense counsel submitted letters to the court
indicating that, other than the incidents in question, Ledesma
had led a law-abiding life, was a caring husband and father, and
had worked consistently to support his family. (See Sentencing:
Tr. 5-8). Ledesma stated that he was "very sorry for what
happened" and that he "never intended to go that far."
(Sentencing: Tr. 22). The court responded, "[I]t seems to me that
the very first swing of the Machete was an attempt to decapitate
Mr. Castro. So I don't know how much further you could have
gone." (Sentencing: Tr. 22). The court admonished Ledesma for
"trying to cast Mr. Castro, who is the victim, into the role of a
criminal" and sentenced Ledesma to the maximum sentences provided
by statute. (Sentencing: Tr. 22-24). The Appellate Division
stated simply that it "perceive[d] no basis for reducing the
sentence." Ledesma, 300 A.D.2d at 73.
Ledesma has argued that his sentence violates the Eighth
Amendment. Petition at App. C; Pet. App. Div. Brief at 29.
Because a habeas court must grant considerable deference to
legislatively mandated terms of imprisonment, however, successful
challenges to sentences are "exceedingly rare." Hutto v. Davis,
454 U.S. 370, 374 (1982) (per curiam) (citation omitted);
accord Solem v. Helm, 463 U.S. 277, 290 (1983) ("Reviewing
courts, of course, should grant substantial deference to the
broad authority that legislatures necessarily possess in
determining the types and limits of punishments for crimes, as
well as to the discretion that trial courts possess in sentencing
convicted criminals."). Indeed, the Second Circuit has broadly
stated that "[n]o federal constitutional issue is presented where
. . . the sentence is within the range prescribed by state law."
White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (per curiam)
(citation omitted). Nonetheless, case law reflects that a habeas
court should not defer to a state sentence "in extreme circumstances such as where the punishment
is barbaric or vastly disproportionate to the crime committed."
Salcedo v. Artuz, 107 F. Supp.2d 405, 414 (S.D.N.Y. 2000);
accord United States v. Certain Real Prop. & Premises Known as
38 Whalers Cove Drive, Babylon, N.Y., 954 F.2d 29, 38 (2d Cir.)
("The Cruel and Unusual Punishment Clause prevents the imposition
of a punishment which is `grossly disproportionate' to the crime
committed." (citation omitted)), cert. denied, 506 U.S. 815
(1992). The Supreme Court has held that, in deciding whether a
penalty is grossly disproportionate to the offense, a court
should consider "(i) the gravity of the offense and the harshness
of the penalty; (ii) the sentences imposed on other criminals in
the same jurisdiction; and (iii) the sentences imposed for
commission of the same crime in other jurisdictions." Solem,
463 U.S. at 292; accord United States v. Bennett,
252 F.3d 559, 567 (2d Cir. 2001), cert. denied, 535 U.S. 932 (2002).
Nonetheless, "a reviewing court rarely will be required to engage
in extended analysis to determine that a sentence is not
constitutionally disproportionate." Solem, 463 U.S. at 290 n.
As an initial matter, it is clear that Ledesma's sentence for
the three crimes Assault in the Second Degree, Attempted
Manslaughter in the First Degree, and Assault in the First Degree
was authorized by law. See N.Y. Penal Law §§ 70.00(2)(c)-(d),
70.02(1)(b)-(c), (2)(a)-(b), (3)(b)-(c). In addition, New York
law also allows for consecutive sentences for distinct crimes
committed on separate dates. See id. § 70.25(2); People v.
Cohen, 201 A.D.2d 494, 496 (2d Dep't 1994). Thus, Ledesma's
sentence is within the range permitted under state law.
With respect to the three Solem factors, the harshness of the
penalty Ledesma received is commensurate with seriousness of the
crimes he committed. The most lengthy sentence concurrent terms
of seven-and-a-half to 15 years for both Attempted Manslaughter
in the First Degree and Assault in the First Degree is not greater than the
sentence imposed in other instances in New York merely for
assault, where there is no additional conviction for attempted
manslaughter. See, e.g., People v. Greene, 274 A.D.2d 842,
843 (3d Dep't 2000) (nine to 18 years); People v. Fullard,
233 A.D.2d 757, 758-59 (3d Dep't 1996) (five to 15 years). Other
jurisdictions have imposed greater sentences for serious
assaults. See, e.g., State v. Perez, 842 A.2d 1187, 1191
(Conn. App. Ct. 2004) (10-20 years); People v. Hayes,
923 P.2d 221 (Colo.App. 1995) (16 years). Thus, federal habeas relief is
not warranted with respect to the sentence in this case.
For the foregoing reasons, Ledesma's petition should be denied.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties have ten (10) days from
service of this Report and Recommendation to file any objections.
See also Fed.R.Civ.P. 6(a), (e). Such objections (and any
responses to objections) shall be filed with the Clerk of the
Court, with copies sent to the Hon. Lewis A. Kaplan, 500 Pearl
Street, New York, New York 10007, and to the undersigned at 40
Centre Street, New York, New York 10007. Any request for an
extension of time to file objections must be directed to Judge
Kaplan. If a party fails to file timely objections, that party
will not be permitted to raise any objections to this Report and
Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140
© 1992-2004 VersusLaw Inc.