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
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.
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).
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 ...