United States District Court, S.D. New York
February 3, 2005.
WILLIAM J. FIGUEROA, Petitioner,
CHARLES GRENIER, Superintendent Green Haven Correctional Facility, Respondent.
The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
REPORT AND RECOMMENDATION
In this pro se petition pursuant to 28 U.S.C. § 2254, William
J. Figueroa ("Figueroa") seeks a writ of habeas corpus to set
aside a judgment of conviction issued November 10, 1997 by the
New York State Supreme Court, Bronx County. Following a jury
trial, Figueroa was convicted of Murder in the Second Degree
under New York Penal Law § 125.25(1), Attempted Murder in the
Second Degree (Penal Law §§ 110, 125.25(1)), and Assault in the
First Degree (Penal Law § 120.10(1)). Figueroa was sentenced to a
term of 25 years to life for the murder conviction, 8-1/3 to 25
years for attempted murder, and 5 to 15 years on the assault
charge with the last two terms to run concurrently to each
other and consecutively to the first term. He is currently
incarcerated at the Green Haven Correctional Facility in
Stormville, New York. For the reasons stated below, Figueroa's
petition should be denied.
A. Evidence at Trial
Figueroa's trial took place in September and October 1997.
1. The Prosecution's Case
Erick Hodge knew Aaron Brent Figueroa ("Aaron"), Figueroa's
younger brother, for approximately two and half years prior to
the events of July 14, 1991 and considered him a good friend.
(Hodge: Tr. 81, 177-78).*fn1 Hodge also knew Figueroa and
saw him almost every other day. (Hodge: Tr. 83-84, 87, 190-91).
Hodge's friendship with Aaron ended when he discovered that Aaron
was dating the mother of Hodge's son. (Hodge: Tr. 88-89, 193-97).
Upon learning of Aaron's involvement with his son's mother, Hodge
was very upset and tried to get in touch with Aaron. (Hodge: Tr.
194-201). Hodge, however, did not actually meet with Aaron until
the early hours of July 14, 1991, approximately five months after
learning of the relationship. (Hodge: Tr. 193-201).
On the evening of July 13, 1991, Hodge had gone to a movie and
then to a party on Tratman Avenue in the Bronx, at a house next
to St. Peter's Park. (Hodge: Tr. 94-95, 209, 211). When the party
ended at approximately 2:30 a.m., Hodge went to the park with his
friends Erick Gautier, Mark Matarro, and Ismael. (Hodge: Tr.
95-96, 211). At the park, Hodge met another friend, Luis
Rodriguez (sometimes spelled "Louis" in the transcript but
referred to hereinafter as
"Luis"), and the group "hung out," drinking beer. (Hodge: Tr. 96,
213-15). Other acquaintances of Hodge were also in the park at
the same time, including: Denice and Damaris Rosa, Eric
Hernandez, J. Rivera, and Jose Rodriguez. (Hodge: Tr. 212).
At some point later in the evening, Ismael saw Aaron drive by
the park in his car. (Hodge: Tr. 98, 217). Hodge saw Aaron when
he drove by a second time, and Hodge noticed a man and a woman in
the back seat of the car. (Hodge: Tr. 98, 218-19). The car came
around a third time and Aaron stepped out. (Hodge: Tr. 99,
220-21). Aaron spoke to Erick Gautier briefly, exchanged some
curses with Hodge, and then drove off in his car. (Hodge: Tr.
100-02, 222, 224-26, 228-29).
At approximately 4:30 a.m., Figueroa, Aaron, and an unfamiliar
third person approached Hodge and Luis who were sitting on a
bench together. (Hodge: Tr. 104, 234; Trigo: Tr. 489-90;
Rodriguez: Tr. 608; Rosa: Tr. 767-68). Jose Rodriguez and the
Rosa sisters were sitting on a bench near Hodge and Luis. (Hodge:
Tr. 164-65; Rodriguez: Tr. 605-07). Virginia Trigo and her friend
Juanito Perez were two benches away. (Trigo: Tr. 489, 508;
Rodriguez: Tr. 607). Eric Hernandez was lying on top of a car
near the park. (Hernandez: Tr. 338, 384-86). Hodge's friends knew
both Aaron and Figueroa and had all seen Figueroa in the
neighborhood on several occasions prior to that evening.
(Hernandez: Tr. 333-37; Trigo: Tr. 481-85, 533-35; Rodriguez: Tr.
596-99, 602-03, 644-46, 648; Rosa: Tr. 757-60, 807-09).
When Figueroa approached, he asked, "Who got beef?" and Hodge
and Luis stood up. (Hodge: Tr. 104; Trigo: Tr. 497; Rosa: Tr.
767-68).*fn2 Aaron said, "So, what's up? What do you
want to do now?" (Hodge: Tr. 105). Hodge responded, "What [do]
you want to do? Let's do it. Let's get it on." (Hodge: Tr. 105).
By saying this, Hodge intended to fight Aaron. (Hodge: Tr. 105).
Aaron and Hodge began arguing and Luis and Figueroa began
arguing. (Hodge: Tr. 105; Rodriguez: Tr. 608; Rosa: Tr. 768-69).
Aaron told Luis to mind his own business but Luis refused.
(Hodge: Tr. 106; Rosa: Tr. 768-69). Aaron turned to his brother
and said, "Lick um, lick um." (Hodge: Tr. 106-07; Trigo: Tr. 498;
Rodriguez: Tr. 608; Rosa: Tr. 770). Figueroa then aimed his gun
and fired a shot which hit Luis in the neck and grazed Hodge in
the side. (Hodge: Tr. 107, 108; Trigo: Tr. 498-99). Luis fell to
the ground and Hodge fell to the side, hitting the bench. (Hodge:
Tr. 108). Figueroa then stepped forward and fired another shot at
Hodges, this time shooting him through the thigh. (Hodge: Tr.
109-10, 249, 251). Hodge tried to run, but fell and remained on
the ground. (Hodge: Tr. 110).
The other individuals who were present in the park saw Figueroa
aim the gun at Hodge and Luis, then either saw or heard two shots
fired. (Hernandez: Tr. 344-45; Trigo: Tr. 498-500; Rodriguez: Tr.
608-10; Rosa: Tr. 770-71). Two of the witnesses testified that
the unidentified third male had been holding the gun and passed
it to Figueroa right before Figueroa fired the shots. (Trigo: Tr.
498-99, Rosa: Tr. 770).
After the shooting, Figueroa and the two other men walked past
Hernandez, with Figueroa still carrying the gun. (Hernandez: Tr.
344, 346-47). Hernandez then went over to where Hodge was lying,
told him Luis was dead, and carried him out of the park. (Hodge:
Tr. 131-32; Hernandez: Tr. 345, 360; Trigo: Tr. 513). Once out of
the park, Hodge was picked up by an ambulance and taken to the
hospital. (Hodge: Tr. 131-32; Hernandez: Tr. 345). Luis's body
was taken to the morgue. (Veaz: Tr. 694-97, 705).
Hodge identified Figueroa as the shooter in subsequent
conversations with the police. (Hodge: Tr. 281, 284-87).
Detective Irwin Silverman was initially assigned to investigate
the shooting (Silverman: Tr. 864-65), and Detective James
Finnegan was assigned to locating and arresting Figueroa,
(Finnegan: Tr. 907). In addition to pursuing other leads,
Finnegan searched for Figueroa at the homes of Figueroa's
grandmother and girlfriend and at the apartment where Aaron
lived. (Finnegan: Tr. 907-12).
In August of 1991, Figueroa went to Holyoke, Massachusetts to
stay with his ex-girlfriend's mother for several months, although
he returned to New York regularly. (Bellevue: Tr. 994-98). His
ex-girlfriend, Sandra Bellevue, also testified that she knew he
was living in Holyoke in 1994. (Bellevue: Tr. 992-93). Figueroa
was ultimately arrested on October 20, 1995 in Dunkirk, New York.
(Silverman: Tr. 879, 900; Finnegan: Tr. 913-14).
2. Figueroa's Case
In his defense, Figueroa elicited testimony from Bellevue, the
mother of his child. (Bellevue: Tr. 971). In July 1991, their son
became sick and had to be hospitalized at Metropolitan Hospital
in Manhattan. (Bellevue: Tr. 971-72). Bellevue and Figueroa
agreed to take turns staying with the baby in the hospital.
(Bellevue: Tr. 973, 989-90, 1006-07, 1012-16). Bellevue spent the
day of July 13, 1991 at the hospital with her son (Bellevue: Tr.
974-75) and was joined by Figueroa at 7:00 or 8:00 in the
evening. (Bellevue: Tr. 977). Bellevue did not spend the night at
the hospital, but when she went back the next day at 9:00 or
10:00 a.m., Figueroa was with the baby. (Bellevue: Tr. 979).
Bellevue testified that she first learned that police were
looking for Figueroa in connection with the murder in October or
November 1991 and she subsequently provided
Figueroa with this information. (Bellevue: Tr. 998-1000, 1002).
She testified, however, that she did not come forward with her
knowledge that Figueroa had been in the hospital with their child
on the night of July 13, 1991, either at the time when the police
were investigating the shooting in St. Peter's Park or when
Figueroa was arrested in 1995. (Bellevue: Tr. 944-48, 1000-05).
When asked why she never came forward with the information prior
to trial, she responded, "I never knew I was supposed to," and "I
never thought I had to." (Bellevue: Tr. 942, 947).
B. Jury Charge, Verdict, and Sentence
The jury was instructed with respect to murder in the second
degree and manslaughter in the first degree as a lesser included
offense, attempted murder in the second degree, and assault in
the first degree. (Tr. II. 214-25). On October 16, 1997, the jury
found Figueroa guilty of murder in the second degree, attempted
murder, and assault. (Tr. II. 249-51). Figueroa was sentenced to
a term of 25 years to life for murder, 8-1/3 to 25 years for
attempted murder, and 5 to 15 years for assault. Petition for
Writ of Habeas Corpus, filed July 16, 2002 (Docket #1), 1;
Affidavit of Raffaelina Gianfrancesco (annexed to Opposition to
Petition, filed October 21, 2002 (Docket #4) ("Opposition"))
("Resp. Aff."), ¶ 6. The sentences for attempted murder and
assault were set to run concurrently to each other and
consecutively to the murder sentence. Resp. Aff. ¶ 6; Brief for
Defendant-Appellant, dated May 27, 2000 (reproduced as Ex. 1 to
Opposition) ("Pet. App. Br."), at 1.
C. Direct Appeal
Figueroa appealed his conviction to the Appellate Division,
First Department. Represented by counsel, Figueroa raised the
following six claims as his grounds for appeal:
1. The trial court erred in instructing the jury on
acting in concert where the prosecution's theory was
that defendant had been the shooter; the
charge prejudiced defendant in that the jury was told
that they could find him guilty of murder even if he
had not been the shooter. (U.S. Const., Amends, V,
XIV; N.Y. Const., Art. I, Sec. 6).
2. The trial court's instruction on consciousness of
guilt was deficient in that it did not tell the jury
that such evidence was of slight probative value, and
did not inform the jury that an innocent person might
resort to conduct which could create the appearance
of guilt. (U.S. Const., Amends, V, XIV; N.Y. Const.,
Art. I, Sec. 6).
3. The trial court's instruction on alibi did not
properly explain that defendant had no burden to
prove that he was not the person who committed the
crime. (U.S. Const., Amends, V, XIV; N.Y. Const.,
Art. I, Sec. 6)[.]
4. Defendant's alibi witness was improperly
questioned extensively about her failure to come
forward with exculpatory information despite the fact
that there was not a proper foundation for such
questioning[.] (U.S. Const., Amends, V, XIV; N.Y.
Const., Art. I, Sec. 6).
5. Defendant's sentences should have been concurrent
rather than consecutive, where a single shot figured
in both crimes[.] (U.S. Const., Amends, V, XIV; N.Y.
Const., Art. I, Sec. 6).
6. Defendant's sentence was excessive when compared
to the sentence offered on a guilty plea. (U.S.
Const., Amends[.] V, VIII, XIV; N.Y. Const., Art. I,
Pet. App. Br. at 19, 28, 32, 38, 44, 50 (capitalization omitted).
The Appellate Division affirmed Figueroa's conviction on
January 18, 2001. People v. Figueroa, 279 A.D.2d 357 (1st Dep't
2001). With respect to the consciousness of guilt and alibi
charges, the Appellate Division held that the trial court was not
required to use the specific language the defendant requested to
instruct the jury and that the charges conveyed the correct
standard. Id. On the claim that the sentences imposed should
have been concurrent, the court found that the act of firing a
shot that killed one victim and injured another was separate and
distinct from the act of moving closer to the surviving victim
and shooting him again. Id. The court found the remaining
issues "unpreserved" and declined to review them, noting that it
nonetheless reject the claims were it to review them on the
On January 27 and February 9, 2001, Figueroa submitted letters
to the New York State Court of Appeals seeking leave to appeal
the Appellate Division's ruling. See Letter to the Hon. Judith
S. Kaye from Paul J. Angioletti, dated Jan. 27, 2001; Letter to
the Hon. George Bundy Smith from Paul J. Angioletti, dated Feb.
9, 2001 (reproduced as Ex. 3 to Opposition). The application was
denied on March 6, 2001. People v. Figueroa, 96 N.Y.2d 783
G. The Instant Petition
On May 3, 2002, Figueroa submitted the instant pro se
petition for writ of habeas corpus in which he incorporates the
same grounds for relief that were raised on direct appeal. See
The respondent filed papers opposing the petition, which
included an argument that Figueroa had failed to exhaust one of
his claims because it had not been presented in federal
constitutional terms in the leave application to the Court of
Appeals. Resp. Aff. ¶ 12; Memorandum of Law, dated October 2002
(annexed to Opposition) ("Resp. Mem."), at 7-15. Figueroa
requested that his petition be held in abeyance or dismissed
without prejudice so that he could exhaust his state remedies and
"give the State court an opportunity to correct the
constitutional errors that plague [his] state proceedings, trial
and direct appeal." See Letter from William Figueroa, dated
February 3, 2003 (Docket #11). This Court denied his request
because the only issue alleged by the respondent not to have been
exhausted was the claim relating to the instruction on
consciousness of guilt. See Order, filed February 7, 2003
(Docket #10). The Court concluded that a delay would be futile as
the Court of Appeals only permits one request for leave to
appeal. Id. at 1. With respect to Figueroa's desire to "correct
the constitutional errors,"
the Court found that this statement was too vague to justify
holding the federal petition in abeyance in the absence of any
indication of what remedies would be available to him in the
state courts. Id. Nonetheless, the Court noted that Figueroa
was free to pursue any claims he wished in state court and
recommended that he do so promptly. Id. at 1-2. Figueroa was
directed to include a description of any new applications made to
the state court in his papers submitted in response to the
respondent's opposition and attach copies of any such
applications. Id. at 2.
Figueroa thereafter informed the Court that he had filed an
application for a writ of error coram nobis with the Appellate
Division, First Department alleging ineffective assistance of
appellate counsel. See Order, filed April 2, 2003 (Docket #13).
This Court then stayed the proceedings until the Appellate
Division ruled on the coram nobis petition. Id.
Figueroa's application for leave to file a writ of error coram
nobis was denied on September 18, 2003. See Denial of Leave to
File a Writ of Error Coram Nobis, dated September 18, 2003
(reproduced as Ex. 3 to Supplemental Affidavit in Opposition,
filed November 25, 2003 (Docket # 14)) ("Coram Nobis Decision").
Figueroa subsequently sought leave to appeal the denial of the
motion with the Court of Appeals. The Court of Appeals denied
Figueroa leave to appeal on July 14, 2004. See Certificate
Denying Leave, dated July 14, 2004 (attached to Endorsed Letter
from Nancy D. Killian to the Hon. Gabriel W. Gorenstein, dated
July 29, 2004 (Docket #16)).
The Court deemed Figueroa's habeas petition amended to include
any claims raised in his coram nobis application. See
Memorandum Endorsement, filed September 10, 2004 (Docket #18).
Respondent subsequently filed a second supplemental affidavit and
memorandum of law to address Figueroa's claim of ineffective
assistance of appellate counsel. See Supplemental
Affidavit and Memorandum of Law in Opposition, filed September
15, 2004 (Docket #19).
II. APPLICABLE LEGAL PRINCIPLES
A. Law Governing Petitions for Habeas Corpus Under
28 U.S.C. § 2254
Under the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), a petition for a 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 claim to be adjudicated "on the merits" within the
meaning of 28 U.S.C. § 2254(d), it must "finally resolv[e] the
parties' claims, with res judicata effect," and it must be "based
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). As long as "there is nothing in its decision
to indicate that the claims were decided on anything but
substantive grounds," a state court decision will be considered
"on the merits" even if it fails to mention the federal claim and
no relevant federal case law is cited. See Aparicio v. Artuz,
269 F.3d 78, 94 (2d Cir. 2001); Sellan, 261 F.3d 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). Williams 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. Moreover, a state court
determination of a factual issue is "presumed to be correct" and
that presumption may be rebutted only "by clear and convincing
evidence." 28 U.S.C. § 2254(e)(1).
B. Law Governing Procedural Default
When a state court rejects a petitioner's claim because the
petitioner failed to comply with a state procedural rule, the
procedural default normally constitutes an adequate and
independent ground for the state court decision. See, e.g.,
Coleman v. Thompson, 501 U.S. 722, 729-30, 749-50 (1991)
(internal citations omitted). 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) (citations
omitted); accord Coleman, 501 U.S. at 749-50; Fama v. Comm'r
of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000); Bossett v.
Walker, 41 F.3d 825, 829 (2d Cir. 1994), cert. denied,
514 U.S. 1054 (1995); 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
adequate and independent state ground doctrine "curtails
reconsideration of the federal issue on federal
C. Exhaustion Requirement
Before a federal court may consider the merits of a habeas
claim, a petitioner must exhaust his available state court
remedies. See 28 U.S.C. § 2254(b)(1) ("An application for a
writ of habeas corpus on behalf of a person in custody pursuant
to the judgment of a State court shall not be granted unless it
appears that . . . the applicant has exhausted the remedies
available in the courts of the State. . . ."); accord Daye v.
Attorney Gen., 696 F.2d 186, 190-91 (2d Cir. 1982) (en banc). To
exhaust a habeas claim, a petitioner is required to present the
federal constitutional nature of the claim to all available
levels of the state appellate courts. See, e.g., Duncan v.
Henry, 513 U.S. 364, 365-66 (1995) (per curiam); Picard v.
Connor, 404 U.S. 270, 275-76 (1971); St. Helen v. Senkowski,
374 F.3d 181, 182-83 (2d Cir. 2004) (per curiam), cert. denied,
2005 WL 36113 (Jan. 10, 2005); Grey v. Hoke, 933 F.2d 117,
119-120 (2d Cir. 1991). This requirement is "grounded in
principles of comity; in a federal system, the States should have
the first opportunity to address and correct alleged violations
of [a] state prisoner's federal rights." Coleman,
501 U.S. at 731.
Figueroa's claim for habeas corpus relief is based on seven
separate grounds. Each is discussed below.
A. Acting-in-Concert Instruction
Figueroa argues that the trial court improperly gave an
acting-in-concert instruction because it could have allowed the
jury to convict him even if they had reasonable doubt that he was
the shooter. See Pet. App. Br. at 19-20. Because Figueroa first
raised this claim in his direct
appeal to the Appellate Division and it was denied on state law
grounds, the respondent argues that this claim is procedurally
barred. Resp. Mem. at 3-6.
The acting in concert instruction was discussed during a
conference prior to closing arguments, during which the following
The Court: Also, at the People's request, they did
request acting in concert, even though in this case
it seems that defendant did all the main operative
acts. Since they requested it, I will explain it to
them perhaps not as extensively in a detailed way as
I would if the defendant were not alleged to be the
shooter in the case.
Mr. Greenfield [Prosecutor]: As you read the
instruction on the law, in and of itself it will be
read as acting in concert with others.
(Tr. 1087). The court went on to address the issue of
manslaughter as a lesser included offense. At no time did
Figueroa's attorney make any comment or objection. Following the
court's charge to the jury, the trial judge specifically asked
the attorneys if there were any "exceptions or requests." (Tr.
II. 227). Mr. Pogrow, Figueroa's attorney, objected to the
language of the consciousness of guilt charge, the language
regarding an inference that could be drawn from a report of a 911
call, and the alibi instruction. (Tr. II. 227-32). When asked if
he had any further objections, Mr. Pogrow replied, "Nothing."
(Tr. II. 232). Indeed, Figueroa conceded in his appellate brief
that "defense counsel did not object to this instruction," urging
the court to instead address the issue in the interests of
justice. Pet. App. Br. at 27-28.
On review, the Appellate Division decided the merits of the
consciousness of guilt instruction, the alibi instruction, and
the sentencing issues, but stated that Figueroa's "remaining
contentions" implicitly including the acting-in-concert
instruction were "unpreserved" and it
"decline[d] to review them in the interest of justice."
Figueroa, 279 A.D.2d at 357. The court added, "Were we to
review these claims, we would reject them." Id.
The first question to be determined is whether the claim
regarding the acting-in-concert instruction is procedurally
barred. It is well settled under New York law that the failure to
make a contemporaneous objection to a jury charge precludes
appellate review of that instruction. See New York Criminal
Procedure Law ("CPL") § 470.05(2). The prosecution relied on this
statute in arguing on the direct appeal that the claim was
unpreserved. See Respondent's Brief, dated December 2000
(reproduced as Ex. 2 to Opposition), 11. The appellate court's
statement that Figueroa's claims were "unpreserved" is sufficient
to establish that it was relying on a procedural bar as an
independent ground in disposing of the issue. See Harris,
489 U.S. at 265 n. 12. The procedural bar applies even where, as
here, the court makes an alternative ruling on the merits. See
id. at 264 n. 10; Velasquez v. Leonardo, 898 F.2d 7, 9 (2d
Cir. 1990) (per curiam) ("[F]ederal habeas review is foreclosed
when a state court has expressly relied on a procedural default
as an independent and adequate ground, even where the state court
has also ruled in the alternative on the merits of the federal
Once the procedural default is shown to be an independent state
ground, 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)).
The "adequacy of a state procedural bar is determined with
reference to the `particular application' of the rule; it is not
enough that the rule `generally serves a legitimate state
interest.'" Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir.
2003) (quoting Lee v. Kemna, 534 U.S. 362, 387 (2002)). Whether
the application of a 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." Id. (citing Lee,
534 U.S. at 386-87).
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 realties of trial," and,
therefore, whether demanding perfect compliance with
the rule would serve a legitimate government
Id. (citing Lee, 534 U.S. at 376).
The first guidepost favors the respondent because, while "the
likely impact of a timely objection involves a certain degree of
speculation," it is certainly possible that "the trial court may
well have come to a different conclusion" had the objection to
the instruction been made. Id. at 243. Had there been such an
objection, the trial court would have had the opportunity to
review and weigh Figueroa's request.
The second guidepost also fails to help Figueroa. Both
statutory and New York case law indicate that a party must object
to a jury charge in order to preserve the issue for appeal.
See, e.g., CPL § 470.05; People v. Nuccie, 57 N.Y.2d 818,
819 (1982); 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).
Finally, Figueroa cannot show that he substantially complied
with the contemporaneous objection rule as there was no objection
whatsoever. The "realities of trial" obviously did not prevent
objections inasmuch as counsel was able to object to other parts
of the instructions. In addition, the state has a strong interest
in requiring parties to bring "any matter which a party wishes
the appellate court to decide . . . to the attention of the trial
court at a time and in a way that [gives] the latter the
opportunity to remedy the problem and thereby avert reversible
error." People v. Luperon, 85 N.Y.2d 71, 78 (1995). Consistent
with this approach, federal courts "have observed and deferred to
New York's consistent application of its contemporaneous
objection rules." Garcia, 188 F.3d at 79 (citing cases). The
Second Circuit has squarely held that "[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." Reyes v. Keane, 118 F.3d 136, 138 (2d Cir.
1997) (citation omitted); accord Bossett, 41 F.3d at 829 n.
2. Accordingly, the procedural bar relied upon by the Appellate
Division in this case is "firmly established and regularly
followed" and therefore an independent and adequate state ground
barring review of the merits of Figueroa's claim.
A petitioner may obtain review of an otherwise procedurally
defaulted claim only if he 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, 489 U.S. at 262 (internal
citations omitted); Fama, 235 F.3d at 809. Whether there is
cause "ordinarily turn[s] on whether the prisoner can show that
some objective factor external to the defense impeded counsel's
efforts to comply with the State's procedural rule." Coleman,
501 U.S. at 722-23 (quoting Murray v. Carrier, 477 U.S. 478,
488 (1986)). Overcoming a procedural bar on
the grounds of a "fundamental miscarriage of justice" requires a
petitioner to demonstrate "actual innocence." Calderon v.
Thompson, 523 U.S. 538, 559 (1998); accord Dretke v. Haley,
124 S. Ct. 1847, 1849, 1852 (2004); Dunham v. Travis,
313 F.3d 724, 730 (2d Cir. 2002).
Figueroa does not allege any facts that would constitute cause
for default. Nor does he make any showing that he is actually
innocent. Accordingly, the procedural default bars federal review
of Figueroa's claims challenging the acting-in-concert
B. Improper Cross-Examination
Figueroa also seeks relief on the grounds that Bellevue, his
alibi witness, was improperly questioned regarding her failure to
come forward with the exculpatory information on Figueroa's
whereabouts. See Pet. App. Br. at 38-44. Specifically, Figueroa
argues that this questioning was improper because it was never
established that she knew how to make exculpatory information
available to the authorities. Id. at 38-39, 43. Thus he
concludes that the proper foundation for her testimony was not
laid and that Bellevue's credibility was unfairly called into
question. Id. at 43-44.
As was true for Figueroa's claim regarding the jury
instructions, this claim was presented for the first time on
direct appeal and the Appellate Division concluded that it was
"unpreserved." Figueroa, 279 A.D.2d at 357. The procedural bar
constitutes an "independent" state ground for the reasons already
discussed. It also constitutes an "adequate" state ground under
the Cotto factors. First, Figueroa's failure to object to the
testimony 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 disallowing the testimony or
requiring a greater foundation. Second, it is well-settled under
CPL § 470.05 that the failure to alert the trial court as to the
for an objection with respect to trial testimony will preclude
later use of the objection as a vehicle for creating a question
of law on appeal. See, e.g., People v. West, 56 N.Y.2d 662,
663 (1982); People v. Gonzalez, 55 N.Y.2d 720, 722 (1981);
People v. Wegman, 2 A.D.3d 1333, 1334 (4th Dep't 2003); People
v. Long, 291 A.D.2d 720, 721 (3rd Dep't 2002). Third, there was
no compliance of any kind with the contemporaneous objection rule
as there was no objection at all.
Finally, as already discussed, Figueroa has not shown cause for
the default nor has he shown actual innocence. Therefore, the
procedural bar is an adequate and independent ground precluding
federal habeas review.
C. Consciousness of Guilt Charge
Figueroa argues that the trial court gave an incomplete
instruction with respect to consciousness of guilt. See Pet.
App. Br. at 28-32. Figueroa contends that the jury should have
been instructed that the evidence on this point the fact that
he could not be located for several years following the shooting
when he knew the authorities were looking for him was of slight
probative value and that an innocent person might resort to such
conduct. Id. at 29-32. Respondent, however, maintains that this
claim is unexhausted because Figueroa did not alert the New York
Court of Appeals to the federal nature of his claim. Resp. Mem.
at 8-10. It is unnecessary to address the issue of exhaustion,
however, because the claim would have to be dismissed on the
merits. See 28 U.S.C. § 2254(b)(2).
To sustain a claim that a jury instruction was improper, a
petitioner must show "not merely that the instruction is
undesirable, erroneous, or even `universally condemned," but that
it violated some right which was guaranteed to the defendant by
the Fourteenth Amendment." Cupp v. Naughten, 414 U.S. 141, 146
(1973); accord Davis v. Strack, 270 F.3d 111, 123 (2d Cir.
2001). Thus, an improper charge will be found to violate a
petitioner's constitutional rights where "there is a reasonable
likelihood that the jury has applied the challenged instruction
in a way that prevents the consideration of constitutionally
relevant evidence," Boyde v. California, 494 U.S. 370, 380
(1990), or "violates the Constitution," Estelle v. McGuire,
502 U.S. 62, 72 (1991). Morever, whether the charge contained an
omission or misstatement of law is relevant in determining
prejudice to the defendant. Henderson v. Kibbe, 431 U.S. 145,
155 (1977) ("An omission, or an incomplete instruction, is less
likely to be prejudicial than a misstatement of the law.").
During a pre-charge conference, defense counsel requested a
charge on consciousness of guilt based on the testimony that
Figueroa could not be found for a period of years. (Tr. 1069-72).
The prosecutor declared that he did not intend to argue
consciousness of guilt and objected to the charge, but the court
agreed to give the instruction at the insistence of the defense
counsel. (Tr. 1071-72). The court's charge was as follows:
In this case the evidence has been introduced which
may arguably evince the defendant's consciousness of
guilt, shooting [sic]. The evidence is the defendant
was not around for several years, he knew he was
wanted by the police in connection with the shooting.
Whether or not the defendant was avoiding the police
and if so whether this evidence does in fact show
defendant's guilty conscience is solely a question
for you the jury. Moreover, the weight to be given
such evidence is exclusively up to you.
Under such circumstances proof of conduct suggesting
consciousness of guilt may be considered by you, but
you first must decide whether the evidence of the
defendant's conduct, if believed by you, does in fact
evidence a consciousness of guilt on the part of the
defendant. You must examine such conduct carefully
since you may have an innocent explanation; and if
from the nature of the conduct itself or from any
explanation offered by Defense you can reasonably
define any innocent explanation from the credible
evidence then you must disregard any evidence of
consciousness of guilt. Moreover, proof of conduct
evidencing consciousness of guilt standing alone may
not be a basis for the finding of
guilt. However, when the people have introduced other
direct and substantial evidence pointing towards the
guilt of the defendant, then evidence suggesting
consciousness of guilt may be considered by you
together with other evidence of guilt in arriving at
Tr. II. 203-04.
Figueroa argues that this charge was deficient because it did
not include language from a pattern jury instruction that the
"proof of conduct evidencing knowledge of guilt has slight
probative value" or language instructing that an innocent person
might resort to conduct that creates an appearance of guilt. Pet.
App. Br. at 29-31. He argues that these omissions allowed the
"evidence [of flight] to loom much larger in the jury's mind than
it rightfully should have." Id. at 32.
As noted, even if the failure to include the requested language
violated a precept of New York law, an omission does not rise to
the level of a constitutional violation unless the petitioner can
show that the error "so infected the entire trial that the
resulting conviction violates due process." Cupp,
414 U.S. at 147. Here, the instruction does not come close to meeting this
exacting standard. The instruction made clear that conduct
evidencing consciousness of guilt may have an innocent
explanation, that it could not be the basis of a finding of guilt
standing alone, and that it was up to the jury to decide what
weight to give the evidence. (Tr. II. 203-04). This was more than
sufficient to accord Figueroa due process. Federal habeas courts
have upheld jury instructions regarding flight even where trial
judges have not instructed that flight is of weak probative
value. See, e.g., Cherry v. Hoke, 1990 WL 52274, at *1
(S.D.N.Y. Apr. 19, 1990) (trial court's failure to charge the
jury regarding the "ambiguity of flight" did not violate
petitioner's constitutional rights); Ramos v. Henderson, 1985
WL 190, at *4-*5 (S.D.N.Y. Jan.
10, 1985) (rejecting argument that trial court was required to
tell jury that evidence of flight is "weak" where court's charge
"left it to the jury to give the evidence of flight `such weight
as it deserves, depending on all the facts and surrounding
circumstances'"). Moreover, Figueroa's absence from the
jurisdiction was not an important part of the trial because the
evidence centered on the testimony of eyewitnesses to the
shooting who were all familiar with Figueroa. In his summation,
the prosecutor relied on the testimony of these witnesses to
support his case, mentioning that Figueroa left the jurisdiction
only in the context of describing the deteriorating relationship
between Figueroa and Bellevue. (Tr. II. 112-88). Accordingly, the
charge on consciousness-of-guilt did not result in a due process
D. Alibi Charge
Figueroa argues that the trial court's instruction on the alibi
charge failed to explain that he had no burden to prove that he
was not the person who committed the crime. Pet. App. Br. at
32-37. He argues that the court's alibi instruction was
"misleading, omitted key concepts, and did not unequivocally
state that defendant bore no burden of proof concerning the
alibi." Id. at 33.
The challenged instruction is as follows:
Obviously, as you are aware an issue raised by the
Defense which you are called upon to decide is
whether or not it was this defendant who participated
in the shooting of Luis Rodriguez and Eric Hodge,
identification issue. In fact the Defense has
presented evidence from Sandra Bellevue that it
contends should lead you to conclude that the
defendant was someplace else when the crime occurred,
that at the time of the shooting at approximately
4:30 on July 14, 1991, he was instead at Metropolitan
Hospital. This is known as an alibi argument or
defense. Now, you must consider and evaluate the
testimony and credibility of the alibi witness Sandra
Bellevue just as you would the testimony of any other
witness. Moreover, if you find her testimony was
truthful, you must still be satisfied that she
correctly remembers the night initially in issue; and
finally, you must consider
the extent to which her testimony supports the
inference that the defendant stayed at the hospital
throughout the night. If you are satisfied that her
evidence as to alibi creates reasonable doubt as to
the guilt of the defendant, that is, the prosecution
hasn't disproved the alibi defense beyond a
reasonable doubt, then the defendant is entitled to
be acquitted. But by the same token of course you
understand that if the People have satisfied you
beyond a reasonable doubt from their witnesses that
the defendant was at the scene of the crime at St.
Petersburg or St. Peter's Park at 4:30 in the a.m.,
they will of necessity have disproved the alibi
beyond a reasonable doubt.
(Tr. II. 206-07).
Figueroa argues that the charge did not unequivocally convey
the appropriate burden of proof to the jury and that the jury may
have interpreted the instruction to mean that the prosecution
could meet its burden of proof on the issue of identity merely by
disproving the alibi. Pet. App. Br. at 36. He also claims that
the court failed to include appropriate instructions regarding
the testimony of interested witnesses which prejudiced the
defendant. Id. at 37.
A jury charge that defectively defines the prosecution's burden
to prove the elements of an offense against a criminal defendant
beyond a reasonable doubt violates the due process clause. See
Sullivan v. Louisiana, 508 U.S. 275, 277-78 (1993); United
States v. Castillo, 14 F.3d 802, 804 (2d Cir. 1994). To
determine whether an instruction impermissibly shifts the burden
of proof on an element of the case to the defendant, the
instruction must be analyzed in the context of the entire charge.
See Cupp, 414 U.S. at 147-48 (noting that "a single
instruction to a jury may not be judged in artificial isolation,
but must be viewed in the context of the overall charge") (citing
Boyd v. United States, 271 U.S. 104, 107 (1926)). Thus, "an
asserted error in a reasonable doubt instruction may be innocuous
or inconsequential when viewed in the context of the charge as a
whole; surrounded by different language in a different charge,
however, the same language may create a constitutional
infirmity." Vargas v. Keane, 86 F.3d 1273, 1277 (2d Cir.),
cert. denied, 519 U.S. 895 (1996).
Here, the challenged portion of the charge itself left no
ambiguity as to the burden of proof. The trial court stated that
the jury should evaluate the alibi evidence to determine whether
it "creates reasonable doubt as to the guilt of the defendant"
and specifically stated that if "the prosecution hasn't disproved
the alibi defense beyond a reasonable doubt, then the defendant
is entitled to be acquitted." (Tr. II. 207). It made further
reference to the prosecution's burden when it stated that if the
prosecution proved that the defendant was at the scene of the
crime, the prosecution "will of necessity have disproved the
alibi beyond a reasonable doubt." (Tr. II. 207).
In addition, the trial court elsewhere in the charge conveyed
the proper standard. When discussing the presumption of
innocence, the court made it clear that the presumption of
innocence "will leave the defendant only if . . . the People have
fulfilled their burden to prove the defendant's guilt of each of
the elements of the offenses submitted beyond a reasonable doubt.
If this burden is not fulfilled, you must acquit the defendant."
(Tr. II. 200). Finally, after discussing the issue of the
witnesses' identification, the court concluded, "It is for you to
determine whether the total evidence in the case convinces you
beyond a reasonable doubt that the defendant is the right man. If
you have a reasonable doubt whether the defendant is the man who
committed crimes charged in the indictment, you must find him not
guilty." (Tr. II. 209). Taken as a whole, the court's
instructions as to Figueroa's alibi defense did not improperly
shift the burden of proof to the defendant. See generally
Ennis v. Walker, 2001 WL 409530, at *13-*14 (S.D.N.Y. Apr. 6,
2001) (Report and Recommendation) (adopted by Order, filed May
16, 2001) (upholding alibi instructions where charge as a whole
contained instructions that defendant did not have the burden to
prove his alibi); Bolling v. Stinson, 1999 WL 287733, at *4-*5
(E.D.N.Y. May 5, 1999) (same).
Figueroa makes an additional claim that the court improperly
failed to instruct the jury that the testimony of an interested
witness should not be dismissed merely because he or she is
interested. Pet. App. Br. at 36-37. The court had instructed the
It's been argued, you have heard example stated
[sic], applied in substance by counsel that one or
another of the witnesses is an interested witness or
a disinterested witness. And on the basis of such
characterizations counsel may have suggested [that]
you give greater or lesser weight to such witness'
testimony. The whole subject of the interest or lack
of interest of any witness and whether any one
witness through interest or otherwise is entitled to
greater or lesser belief is for you to decide
exclusively. Evidence, if any, of the interest or
lack of interest of any witness is something you have
a right to consider in evaluating the testimony.
(Tr. II. 197). Figueroa suggests that this instruction was
particularly prejudicial because of the importance of Sandra
Bellevue's testimony to the alibi defense. Pet. App. Br. at 37.
While it might have been preferable to remind the jury that the
testimony of an interested witness should not be dismissed merely
because of the fact that he or she is interested, this omission
can hardly be said to have "infected the entire trial." Cupp,
414 U.S. at 147. The trial court expressly told the jury to weigh
the arguments regarding interested witnesses for themselves. (Tr.
II. 197). Thus, the jury was free to give Bellevue's testimony
great weight, depending on its own evaluation of her credibility.
E. Sentencing Claims
Figueroa makes two claims based on the sentence imposed. His
first argument is that his sentence for attempted murder and for
assault in the first degree should have been imposed to run
concurrently, not consecutively, to the sentence for murder in
the second degree because the act that resulted in Luis' death
was part of the same act that constituted the attempted murder
assault on Hodge. Pet. App. Br. at 44-49. Second, he argues that
his aggregate sentence of 33-1/2 years to life is excessive,
especially in light of the sentence of fifteen years he would
have received if he had pleaded guilty. Id. at 50-51.
1. Concurrent Sentencing
New York Penal Law § 70.25(2) requires sentences to be imposed
concurrently "[w]hen more than one sentence of imprisonment is
imposed on a person for two or more offenses committed through a
single act or omission, or through an act or omission which in
itself constituted one of the offenses and also was a material
element of the other." Where the facts demonstrate that the acts
underlying the crimes are separate and distinct, the sentencing
court has the discretion to impose a consecutive sentence. N.Y.
Penal Law § 70.25(1); see, e.g., People v. Ramirez,
89 N.Y.2d 444, 450 (1996). Figueroa argues that the state and
appellate courts erred in finding that the act that constituted
the murder of Luis Rodriguez was separate from the attempted
murder and assault against Hodge. Pet. App. Br. at 44-49.
Errors of state law are not subject to federal habeas review.
See, e.g., Estelle, 502 U.S. at 67-68 ("[I]t is not the
province of a federal habeas court to reexamine state-court
determinations on state-law questions."). Rather, a petitioner
must demonstrate that his conviction resulted from a state court
decision that violated federal law. See, e.g., id. at 68
(citations omitted). As a result, federal habeas courts have
squarely held that claims regarding the imposition of consecutive
sentences are purely a matter of state law and are not cognizable
on habeas review. See, e.g., Davis v. Herbert, 2003 WL
23185747, at *15 (E.D.N.Y. Oct. 24, 2003) ("Whether the sentence
could be consecutive was a matter of state law and raises no
Constitutional issue."); Heath v. Hoke, 1989 WL 153759, at *3
(W.D.N.Y. Dec. 7, 1989) ("[A] state court's
interpretation of state law on concurrent and consecutive
sentences is not a question of federal constitutional dimension
cognizable in a federal habeas corpus proceeding.") (citing
Kemff v. Estelle, 62 F.2d 162, 163 (5th Cir. 1980)).
In any event, the Appellate Division properly determined that
"[a]lthough defendant's first shot both killed the deceased
victim and slightly wounded the surviving victim, defendant then
moved closer to the assault victim and purposefully shot him,
causing serious physical injury. This clearly constituted a
separate and distinct act sufficient for the imposition of
consecutive sentences." Figueroa, 279 A.D.2d at 357 (citations
omitted). Because the imposition of consecutive sentences was
valid under New York law, no constitutional issue is presented
for habeas review. See, e.g., Cardell v. Fischer, 2004 WL
2070820, *2 (E.D.N.Y. Sept. 14, 2004); Lewis v. Bennett,
328 F. Supp. 2d 396, 413 (W.D.N.Y. 2004), Arocho v. Walker, 2001 WL
856608, at *3 (S.D.N.Y. July 27, 2001).
2. Excessive Sentence
To the extent Figueroa is arguing that his sentence violates
the Eighth Amendment, that claim must fail as well. Because a
habeas court must grant considerable deference to legislatively
mandated terms of imprisonment, 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); accord Herrera
v. Artuz, 171 F. Supp. 2d 146, 151 (S.D.N.Y. 2001); Sutton v.
Herbert, 39 F. Supp. 2d 335, 337 n. 1 (S.D.N.Y. 1999). Here, the
sentence was within the limits permitted by New York law, which
provides that the maximum sentence for murder in the second
degree is life imprisonment. New York Penal Law §§ 125.25;
70.00(2)(a). The maximum sentence for attempted murder in the
second degree is 25 years. New York Penal Law §§ 110.05(3);
That the sentence is within the limits permitted by New York
law does not entirely resolve the issue, however, because the
Eighth Amendment prohibits "barbaric" sentences and those that
are "disproportionate to the crime committed" regardless of
whether they are within the limits permitted by state law.
Solem, 463 U.S. at 284. While the Supreme Court has outlined
factors that may be considered in deciding whether a penalty is
grossly disproportionate to the offense, this is not one of the
"rare?" cases where the "reviewing court . . . [is] required to
engage in extended analysis to determine that a sentence is not
constitutionally disproportionate." Id. at 290 n. 16. Rather,
it is enough to say that a sentence of 25 years to life for the
murder of one individual and a consecutive sentence of 8-1/3 to
25 years for firing a separate shot and seriously wounding
another individual are appropriate to the offenses and thus
easily pass constitutional muster.
Figueroa's claim that he was punished for refusing the plea
offer and going to trial, Pet. App. Br. at 50-54, also fails to
present a constitutional claim. While the vindictive imposition
of additional punishment on a defendant for successfully
attacking a first conviction violates due process, see Alabama
v. Smith, 490 U.S. 794, 798 (1989), "in the `give-and-take' of
bargaining, there is no such element of punishment or retaliation
so long as the accused is free to accept or reject the
prosecution's offer," Bordenkircher v. Hayes, 434 U.S. 357,
Prior to trial, the court explained to Figueroa that he had
previously been misinformed as to the potential maximum sentence
he would face if convicted and that, based on the potential for
consecutive sentences, the correct potential maximum was 37-1/2
years to life. (Tr. 30-32). The court noted that there had
previously been an offer of a 15-year sentence on a plea, and
that while he personally believed that the offer was "a little
low" (Tr. 34), he felt compelled to make the offer again because
Figueroa had been misinformed about the potential "downside"
following a conviction. (Tr. 30-31). Figueroa rejected the offer
once again. (Tr. 36).
Contrary to Figueroa's assertions, there is no basis on which
to conclude that the sentence Figueroa ultimately received showed
that the judge sentenced him vindictively for refusing the plea
deal. "[T]he mere fact that the court, following conviction,
imposed a sentence . . . approaching the maximum legal limit does
not, in itself, demonstrate actual vindictiveness." Naranjo v.
Filion, 2003 WL 1900867, at *10 (S.D.N.Y. Apr. 16, 2003) (Report
and Recommendation) (adopted by Order, filed July 2, 2003)
(citing cases); see also Thomas v. Kuhlman, 2003 WL
21294065, at *7 (E.D.N.Y. Apr. 8, 2003) ("[F]ederal habeas courts
cannot set aside state court sentences on the ground that they
are unnecessarily punitive. As a general matter, the question is
only whether the sentence was within the authorized range.")
(citing White, 969 F.2d at 1383). As the Supreme Court has
noted, a defendant in plea bargaining circumstances will often be
"confronted with the `certainty or probability' that, if he
determines to exercise his right to plead innocent and to demand
a jury trial, he will receive a higher sentence than would have
followed a waiver of those rights." Chaffin v. Stynchcombe, 412
17, 30-31 (1973) (internal citation omitted). The Court, however,
has also stated that "the imposition of these difficult choices . . .
[is] an inevitable attribute of any legitimate system which
tolerates and encourages the negotiation of pleas." Id. at 31.
Because Figueroa can point to no evidence that the sentencing
judge imposed a sentence only because Figueroa refused to accept
the plea bargain initially offered, there is no basis for habeas
relief. Notably, case law is replete with instances where similar
warnings from a trial judge as to the potential for a greater
sentence after trial have passed constitutional muster. See,
e.g., Gomez v. Duncan, 2004 WL 119360, at *18, *20-*22
(S.D.N.Y. Jan. 27, 2004) (Report and Recommendation) (citing
F. Ineffective Assistance of Appellate Counsel
Figueroa's arguments regarding the ineffective assistance of
appellate counsel are contained in his application for a writ of
error coram nobis. See Memorandum of Law in Support of Motion
for Writ of Error Coram Nobis, dated January 1, 2004 ("Coram
Nobis Mem"). While the application is difficult to follow, it
appears that Figueroa relies on two grounds for relief. The vast
bulk of the application argues that appellate counsel failed to
frame trial errors in federal constitutional terms, thus
purportedly denying Figueroa of federal review of alleged
violations of his constitutional rights. Id. at 3-5. Figueroa
also complains in general terms about his appellate counsel's
performance and, in a single sentence, asserts that he was denied
effective assistance of appellate counsel due to "appellate
counsel's wholly inexcusable failure to recognize and pursue the
issues of ineffective assistance of trial counsel." Affidavit in
Support of Motion of Writ of Error Coram Nobis, dated January 1,
2004, ¶ 4. No examples of trial counsel's ineffectiveness are
The first question to be decided is whether the Appellate
Division denied the application "on the merits." As noted above,
if the state appellate court adjudicated Figueroa's claim on the
merits, the Court may grant habeas relief only if the Appellate
Division's adjudication was "contrary to, or involved an
unreasonable application of, clearly established Federal law" or
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); Williams v. Taylor, 529 U.S. at 405-06;
Aparicio v. Artuz, 269 F.3d at 93.
Here, the Appellate Division's decision was on the merits
because "there is nothing in its decision to indicate that the
claims were decided on anything but substantive grounds," even
though it does not mention the federal claim and no relevant
federal case law is cited. See Aparicio, 269 F.3d at 94. The
decision makes no reference to any procedural rule but rather
denies the application after "reading and filing the papers with
respect to the motion" and engaging in "due deliberation" on the
motion. Coram Nobis Decision at 1. The court also cites to the
standards for making out an ineffective assistance of appellate
counsel claim on the merits. Id. (citing People v. de la Hoz,
131 A.D.2d 154, 158 (1st Dep't 1987) (per curiam)). This further
demonstrates that the court adjudicated the claim on the merits.
See Rodriguez v. Artuz, 2002 WL 31093605, at *6 (S.D.N.Y.
Sept. 18, 2002).
Because his claim was dismissed on the merits, habeas relief is
available only if Figueroa can show that the Appellate Division's
decision was contrary to, or involved an unreasonable application
of, clearly established federal law as determined by the Supreme
Court of the United States. Figueroa cannot meet this heavy
To make a successful claim for ineffective assistance of
appellate counsel, a habeas petitioner must show that: "(1)
counsel's performance `fell below an objective standard of
reasonableness,' and (2) that there is a `reasonable probability'
that, but for the deficiency, the outcome of the proceeding would
have been different." McKee v. United States, 167 F.3d 103, 106
(2d Cir. 1999) (quoting Strickland v. Washington, 446 U.S. 668,
688 (1984)). Further, in context of an appellate counsel who is
being reviewed for failing to raise the ineffectiveness of trial
counsel, the habeas court must determine "whether trial counsel
was so obviously inadequate that appellate counsel had to
present that question to render adequate assistance." Page v.
United States, 884 F.2d 300, 302 (7th Cir. 1989) (emphasis in
Here, the high standard for proving ineffective assistance of
appellate counsel has not been met. First, Figueroa's claim that
appellate counsel was ineffective for failing to raise the issue
of the incompetence of trial counsel cannot be upheld. One of the
main functions of appellate counsel is to "winnow? out weaker
arguments on appeal." Jones v. Barnes, 463 U.S. 745, 751
(1983). Even if a claim is nonfrivolous, counsel is not required
to present every claim on behalf of a defendant appealing his or
her conviction. Smith v. Robbins, 528 U.S. 259, 288 (2000)
("[A]ppellate counsel who files a merits brief need not (and
should not) raise every nonfrivolous claim, but rather may select
from among them in order to maximize the likelihood of success on
appeal.") (citing Barnes 463 U.S. at 751); Wright v. United
States, 182 F.3d 458, 466 (6th Cir. 1999) ("Appellate counsel is
not ineffective simply because he or she decides not to raise
every possible argument on appeal.") (citing Barnes,
463 U.S. at 753). Figueroa fails to allege how his trial counsel was so
"obviously inadequate" as to require appellate counsel to raise
some issue of trial counsel's incompetence on appeal. Because
Figueroa does not explain how
trial counsel was incompetent let alone put forth any support
for such a claim his argument that appellate counsel should
have raised this issue must fail.
The argument that appellate counsel "failed in his duty to
investigate and marshall [sic] arguments on petitioner's behalf"
is similarly unavailing. Coram Nobis Mem. The appellate brief
submitted to the Appellate Division by appellate counsel contains
six grounds for appeal and each argument is supported by
references to the record and citations to relevant case law.
Finally, appellate counsel was not rendered ineffective due to
his failure to argue the issues he raised in federal terms.
First, this Court has assumed that any federal constitutional
issues were exhausted and nonetheless found no federal
constitutional error in the trial court. In addition, the brief
makes reference to federal constitutional provisions in its point
headings, thus preserving any requirement that the federal nature
of a claim be presented in the state courts. See, e.g.,
Davis v. Strack, 270 F.3d 111, 122 (2d Cir. 2001).
Accordingly, the Appellate Division did not unreasonably apply
clearly established federal law in deciding that appellate
counsel had not been ineffective through his omission on appeal
of the ineffective assistance of trial counsel claim or in the
manner in which he raised federal law on direct appeal.
For the foregoing reasons, Figueroa's petition should be
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties have ten (10) days from
service of this Report and Recommendation to serve and 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. Deborah A.
Batts, 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 Batts. 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