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August 10, 2004.

RAYMOND J. CUNNINGHAM, Superintendent, Woodbourne Correctional Facility, Respondent.

The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge


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.


  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 ...

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