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LEDESMA v. CUNNINGHAM

United States District Court, S.D. New York


August 10, 2004.

LIONEL LEDESMA, Petitioner,
v.
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 be denied.

I. BACKGROUND

  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, 328).

  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. 374-75).

  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. 636-38).

  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. (Tr. 957-60).

  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 1(6)).
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 (2003).

  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 considered here.

  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).

  III. DISCUSSION

  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 when:
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 when:
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 Division held:

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 determinations.
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 testimony").

  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. 921).

  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 anyone.
. . . .
. . . [F]or you to conclude that Reynaldo Moloon is either inaccurate or dishonest would be preposterous, I submit.
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.
(Tr. 855-58).

  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 similar situation:

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 omitted).

  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 justification defense.

  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, 280 (1983).

  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 interest.
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 default).

   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 is barred.

   G. Sentence

   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. 16.

   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.

   Conclusion

   For the foregoing reasons, Ledesma's petition should be denied.

  

PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
   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 (1985).

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