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February 3, 2005.

CHARLES GRENIER, Superintendent Green Haven Correctional Facility, Respondent.

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


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. Page 2


  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 Page 3 "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 Page 4 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). Page 5

  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 Page 6 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 Page 7 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, Sec. 6).
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 would Page 8 nonetheless reject the claims were it to review them on the merits. Id.

  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 (2001).

  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 Petition.

  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," Page 9 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 ...

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